Bender v. Comstock

Robertson, Ch. J.

This is a motion to set aside the complaint, for not following the character of the summons with which it was served. The latter contains a notice that in default of answering, the plaintiff will take judgment for a speci*645fied sum mentioned in the complaint, whereas the former is for a tort. It is urged, that the remedy of the defendant for the incongruity, where the summons is served with the complaint, is a motion to set aside the summons. But I think the correct remedy is to set aside the complaint. The service of the summons is the commencement of the action, and the…