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65 Cal. 97

Shinn v. Cummins

California Supreme Court

Decided March 6, 1884

California Supreme Court · decided 1884-03-06

The action was to recover a lot of cattle claimed to be the property of plaintiff, and to have been wrongfully taken by defendant. The summons was regular in all respects except that the name of the plaintiff’s attorney was not indorsed upon it. The defendant moved to dismiss, vacate, and set aside the service on the ground that the summons, was not indorsed as required by section 407 of the Code of Civil Procedure.

Good law ✅— No negative treatment on recordhow we know

Decided 1884-03-06

How this case has been cited

Cited by 18 later decisions — most recently September 1945

2 federal appellate · 14 state decisions

601884189019001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Sharpstein, J.

¶1Appellant insists that it is essential to the validity of a summons that the name of the plaintiff’s attorney be indorsed on it. The Code provides that “the name of the plaintiff’s attorney must be indorsed on the summons.” (Code Civ. Proc. § 407.) There was not in this case a literal compliance with that provision. The name of the plaintiff’s attorney appears on the face and not on the back of the summons. Therefore it is not indorsed on the summons. And if we could see that the defendant might possibly be prejudiced by this circumstance, it would be our duty to reverse the judgment. But we cannot. The object of the law doubtless is to have the name of the plaintiff’s attorney indorsed on the summons, so as to inform the defendant who such attorney is. While it is advisable in all cases to literally comply with the provisions of the Code, nothing short of a substantial departure therefrom can properly be held to be fatal to a proceeding under it. “ Its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.” (Code Civ. Proc. § 4.)

¶2The pendency of the defendant’s motion, “to dismiss, vacate, and set aside the pretended service of summons and copy of complaint,” did not extend the time specified in the summons *99for answering the complaint. When the default was entered, there had been no appearance in the case by the defendant, and we are unable to discover any ground on which the judgment should be reversed.

¶3Judgment affirmed.

¶4Myrick, J., and Thornton, J., concurred.

¶5Hearing in Bank denied.

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