(1) The instrument is set forth in the complaint and sued on in haec verba and it is immaterial what the plaintiff called it, whether it was in fact a promissory note or not. (2) The complaint was made a part of the summons by reference, and there is no statute requiring the return endorsed on a summons issued by a district court to refer to the complaint as distinguished from the summons. The judgment below is affirmed.
16 Haw. 792
No. 69.
R. W. Davis, Plaintiff in Error, v. Mrs. J. A. King, Defendant in Error.
Error to district court, Honolulu.
Submitted February 20, 1905.
Decided March 8, 1905.
Frear, C. J., Hartwell, J., and Circuit Judge De Bolt in Place of Wilder, J.
Assumpsnt by defendant, who was plaintiff below, upon the following instrument: “Honolulu Nov. 8th 1-8. On demand I promise to pay to Mrs. J. A. King or order the sum of one-hundred and sixty dollars ($160.00), payable monthly in advance. Beginning from the first- day of Jan. 1st 1899, at ten dollars ($10.00) monthly until the sum of one hundred and sixty dollars in full is paid. R. W. Davis.” The summons was in the usual printed form, but, instead of containing the complaint in the blank space provided therefor, it contained the words “as per appending declaration,” and the complaint, which was apparently too lengthy for insertion in Such space, was attached to the printed form. Two errors are assigned: (1) That the complaint does not state facts sufficient to constitute a cause of action — for the alleged reason that the instrument is not a promissory note, though sued on as such, and (2) that the district court was without jurisdiction of the person of the defendant below — for the reason that the return of service endorsed on the summons does not show that a copy of 'the complaint, as well as of the summons, was served upon the said defendant.
E. C. Peters for plaintiff in error.
A. S. Humphreys and A. H. Crook for defendant in error.
Davis v. King
16 Haw. 792
References
Nothing yet... Still searching!
Nothing yet... Still searching!