Miner v. Francis
North Dakota Supreme Court
Appeal from District Court, Stutsman Cotyity; Rose, J. Action by L. B. Miner against O. W. Francis and FI. C. Southard. There was judgment for plaintiff, and defendants appeal. A defendant has a right to appear for the purpose of moving to dismiss a defective summons and it is error in the court to refuse him that privilege. Nor does the fact that he afterwards appears and answers, waive his right or cure the error.
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Appeal from District Court, Stutsman Cotyity; Rose, J. Action by L. B. Miner against O. W. Francis and FI. C. Southard. There was judgment for plaintiff, and defendants appeal. A defendant has a right to appear for the purpose of moving to dismiss a defective summons and it is error in the court to refuse him that privilege. Nor does the fact that he afterwards appears and answers, waive his right or cure the error. Lyman v. Milton, 44 Cal. 631; Deidesheimer v. Brown, 8 Cal. 340; Bell v. Good, 19 N. Y. Sup. 693; Morris v. Graham, 51 Fed. Rep. 53. This doctrine is not opposed to Lyon v.…
1Opinion of the CourtCorliss, J.
This action was originally commenced before a justice of the peace. The defendants first appeared specially before the justice, and moved to set aside the summons in the action for the reason that no time was therein specified for the appearance of the defendants. This motion was overruled. Defendants excepted. Thereafter, they answered the complaint in the action; reserving, however, their objection to the jurisdiction of the court because of the alleged insufficiency of the summons. Judgment having been rendered against them, they appealed to the District Court on questions of law only. No…
2Cases cited14 opinions
- Harkness v. HydeSupreme Court of the United States · 1879
- Jones v. . JonesNew York Court of Appeals · 1888
- Warren v. CraneMichigan Supreme Court · 1883
- Ford v. DoyleCalifornia Supreme Court · 1872
- Avery v. SlackNew York Supreme Court · 1837
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3Cited by18 opinions
- Northern Pacific Railway Co. v. McDonaldNorth Dakota Supreme Court · 1950
- Bryan v. MillerNorth Dakota Supreme Court · 1944
- Ellingson v. Northwestern Jobbers Credit BureauNorth Dakota Supreme Court · 1929
- Corbett v. Physicians' Casualty Ass'n of AmericaWisconsin Supreme Court · 1908
- Vanover v. VanoverWyoming Supreme Court · 1957
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