Citations
- 6 Fla. 724
Full opinion text
Í>U PONT, J.,
delivered the opinion of the court.
This was an action of assumpsit, brought by the appellees to recover from the appellant the amount due upon a promissory note. The summons ad respondendum omitted to state the damages, but was in other respects in the usual form. At the appearance term, the defendant filed a plea in abatement in the following words, to wit:
“The defendant, by James Gettis, prays judgment of the said writ and declaration, because he says that there is no sum of money whatever set forth or spoken of in said writ; and this the said defendant is ready to verify. Whereupon he prays judgment of the said writ and declaration, and that the same may be quashed,” &c.
To this plea there was a demurrer filed which was sustained by the court, and the plea adjudged to be bad. At the next succeeding term a judgment for the damages was entered for the plaintiffs ; whereupon the defendant prayed an appeal to this court, and now assigns for error the over-ruling of his said plea in abatement. *
Under this assignment of error two questions are presented for our consideration : First, whether the omission: to state the damages in the summons is such a defect as will render the summons entirely void ? and, secondly, if it were, whether it could be taken advantage of by plea in abatement ?
The statute regulating the. commencement of suits provides for the filing of a prceeipe or memorandum in the Clerk’s office, previous to the commencement of the suit, in which is to be set forth a statement of the names of the parties^ the nature of the action and the amount of the debt or damages ” sued for. It further provides, “ that i shall be the duty of the clerk upon the receipt of such praecipe' or memorandum, to make out therefrom a writ of capias or summons ad respondendum, which shall be called the original and which shall he served by the sheriff,” &c.—Tide Thompson’s Digest, 325.
Erom the fact that it is required that the prceoipe. shall state the debt or damages sued for and that the summons shall be made out therefrom, it is but a natural inference that the debt or damages should also appear in the latter. This inference is too obvious to need any elaboration. But whilst we adopt this conclusion, and would enforce upon the clerks of the Circuit Courts the propriety of a strict attention to this direction of the statute, we cannot admit that the omission to insert the debt or damages will render the summons void. We are rather inclined, where the debt or damages are stated in the prceoipe, to look upon such omission as a misprison of the clerk, and to accord to the plaintiff the benefit of an amendment. As the defence to the merits is always made to the cause of action as set forth in the declaration, there can he no surprise to the defendant, nor can the omission work any detriment t