summons

In Common-Law Practice. The name of a writ commanding the sheriff, or other authorized oflfiicer, to notify a party to appear in court to answer a complaint made against him, and in the said writ specified, on a day therein mentioned. Viner, Abr.; 2 Sellon, Prac. 356; 3 Bl. Comm. 279. The writ of summons was substituted by St. 2 Wm. IV. c. 39, for the original writs by which actions were formerly commenced. In Code Practice. The proceeding to commence an action in many of the code states consists of a notice to defendant, requiring him to serve an answer to the complaint. It is ordinarily signed by the plaintiff or his attorney, bears no teste, and is not process. It may be served by any disinterested person or by the attorney. In other code states the summons^ runs in the name of the state or people, is issued by the clerk under seal, and is served by the sheriff. Some of the states permit the use of either of these, two modes of summons. See "Process."

The name of a writ commanding the sheriff, or other authorized officer, to notify a party to appear in court to answer a complaint made against him and in the said writ specified, on a day therein mentioned. 3 Bla. Com. 279.

In practice. A writ, directed to the sheriff or other proper officer, requiring him to notify the person named that an action has been commenced against him in the court whence the writ issues, and that he ls required to appear, on a day named, and answer the complaint in such action. Whitney v. Blackburn, 17 Or. 564, 21 Pac. 874, 11 Am. St. Rep. 857; Horton v. Railway Co.., 26 Mo. App. 358; Plano Mfg. Co., v. Kau-fert, 86 Minn. 13, 89 N. W. 1124. Civll actions in the courts of record of thls state shall be commenced by the service of a summons. Co.de N. Y. § 127.

In Scotch law. A writ passing under the royal signet, signed by a writer to the signet, and containing the grounds and conelusions of the action, with the warrant for citing the defender. This writ corresponds to the writ of summons in English procedure. Bell; Paters. Co.mp.

— Summons and order. In English practice. In this phrase the Bummons is the application to a common-law judge at chambers is reference to a pending action, and upon it the judge or master makes the order. Mozley & Whitley.

— Summons and severance. The proper name of what is distinguished in the books by the name of "summons and severance" la "severance;" for the summons is only a process which must, in certain cases, issue before judgment of severance can be given; while severance is a judgment by which, where two or more are joined in an action, one or more of these is enabled to proceed in such action without the other or others. Jacob.

A writ or process by which an action is begun, the defendant being thereby summoned to appear in court to answer the plaintiff; in the code states, a mere notice that an action has been begun and that the defendant is required to answer.

In old English law. An original writ directed to a sheriff, requiring him to Bummon a defendant to appear to answer to an action; a process by which a defendant was summoned to appear in compliance with an original writ already issued, or by which he had notice that the writ had been issued.

The name bestowed by positive law upon various instruments having it for their object to notify a party of a suit commenced against him; to bring a defendant into court; to give a person sued opportunity to appear and answer. Summons is a proper term for almost any notice to a person sued, to appear and defend. By provisions of the New York code of procedure, which have been followed in more than half of the other states, civil actions in courts of record, both of legal and equitable cognizance, are commenced by a summons. This summons has not the characteristic incidents of a writ; and is nothing more than a notice in writing, addressed by the plaintiff or his attorney, to the defendant, informing him that he is summoned and required to answer the complaint, a copy of which may be annexed, or the summons may notify defendant where it may be filed. The weight of authority in the code states is, that this summons is not, in strictness, process; yet it takes the place and performs the function of mesne process, and is not unfrequently spoken of as process. Summons is also, in New York, one of the modes by which actions in justices' courts are commenced. In England, writ of summons is now the mode by which actions, both at law and in equity, in the high court of justice are commenced. The first process to bring the tenant or defendant into court in all real actions, with one or two exceptions, as in assise of novel disseisin and writ of deceit, is a summons commanding the sherifE to summon the tenant to appear in court, according to the requisition of the writ. This command is contained in the original writ, and no separate writ of summons issued to the sheriff. a citation to appear before a judge or magistrate. The word is used variously, as follows: 1. The process used for bringing a party before a justice of the peace on summary conviction is termed a summons. This is also sometimes called a warrant; but the latter term commonly denotes that instrument which authorizes the apprehension of the accused, which a summons does not generally do. 2. An application to a judge at chambers, whether at law or in equity. Such an application in a suit in equity is often adjourned into open court; it is then called an adjourned summons. 3. A writ, in Scotch law, passing under his majesty's signet, signed by a writer to the signet, and containing the grounds and conclusions of the action, with the warrant for citing the defender. (Bell.) This writ corresponds to the writ of summons in English procedure. [Paterson,) i. The writ of summons is likewise, in English law, the commencement of an action. It is a writ calling on the defendant to cause an appearance to the action to be entered for him within eight days after service, in default whereof the plaintiff may proceed to judgment and execution. There are different forms of it, according as the defendant does or does not reside within the jurisdiction; and, if he does not, the period of eight days may be enlarged, with reference to the distance he may be from England. (Lush Pracfibb.) By the common-law procedure acts, six general forms of this writ were provided; viz., Where defendant is within the jurisdiction, and the writ bears no special indorsement; where defendant is within the jurisdiction, and the writ bears a special indorsement; where defendant, being a British subject, is out of the jurisdiction; where defendant, not being a British subject, is out of the jurisdiction; where the plaintiff seeks a mandamus (C. L. P. Act, 1854, § 68); and where the plaintiff seeks an injunction ( C. L. P. Act, 1854, §§ 79-82.) And the summary procedure on bills of exchange is commenced by means of a writ of summons specially provided for the purpose. Under the judicature acts, every action in the high court is to be commenced by writ of summons, which must be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the actibn, and must also specify the division of the high court to which it is intended that the action shall be assigned. It is not necessary for the plaintiff, in the indorsement, to set forth the precise relief or remedy to which he considers himself entitled. Brown; Mozky ^ W. Summona and order. In the progress of an action at law, it frequently becomes necessary to obtain the order of the court occurrence, it would be inconvenient in many respects to permit the party seeking such an order to make an application for the same in open court; in consequence of which, one of the judges usually sits at his own chambers for the purpose of hearing and disposing of such minor matters. The party who wishes to obtain a judge's order must usually summon the attorney or agent of the opposite party before the judge; which he does by obtaining a judge's summons, and serving it on such opposite party, which summons requires him to attend before the judge at a specified time, to show cause why the party applying for the order should not have it granted him. The order of the judge, when granted, usually orders or grants liberty to the applicant to have what he seeks. (2 Arfh. Pract. 1598.) Summons and severance. The proper name of what is distinguished in the books by the name of summons and severance, is severance; for the summons is only a process, which must, in certain cases, issue before judgment of severance can be given; while severance is a judgment, by which, where two or more are joined in an action, one or more of these is enabled to proceed in such action without the other or others. Jacob. It was the only mode by which one of several plaintiffs in error, having been defendants in the court below, could prosecute a writ of error against the consent of the rest. But by the orders under the judicature act, 1875, where there are numerous parties having the same interest in one action, one or more of such parties may sue or be sued, or may be authorized by the court to defend in such action, on behalf or for the benefit of all parties so interested; and proceedings in error are abolished. See Lush Pract.