It occurs to me that the original notice under consideration is not more defective than many other notices sustained by this court.
The following of our cases are sufficiently illustrative: Lyon v. Byington, 10 Iowa 124, involved an omission of the name of the State; Fanning v. Krapfl, 68 Iowa 244, involved a discrepancy in the name of the defendant; a like discrepancy was involved in Mallory v. Riggs, 76 Iowa 748; Allison v. C.B. Q.R. Co.,76 Iowa 209; Schee v. LaGrange, 78 Iowa 101; Lindsey v. Delano,78 Iowa 350; Davis v. Burt, 7 Iowa (Clarke), 56; McDonnell v. Winthrop State Bank, 179 Iowa 551. In Elliott v. Corbin, 4 Iowa (Clarke), 564, a notice claiming of the defendant the "sum of _____ dollars", was held not void; in Moody v. Taylor, 12 Iowa 71, a similar notice was held void.
In Cummings v. Landes, 140 Iowa 80, a notice failing to state time and place of appearance was held void. A like holding *Page 1022 was made in Kitsmiller v. Kitchen, 24 Iowa 163; and likewise in Decatur County v. Clements, 18 Iowa 536. In Knapp, Stout Co. v. Haight, 23 Iowa 75, the notice was held sufficient, which required the defendant to appear in answer "on or before noon of the 15th day" of a specified month, — such day being in fact the second day of the term.
In the long list of our cases involving defects in the original notice, a holding adverse to the sufficiency of such notice is rather exceptional. There is something to be said in condemnation of the negligent practice which results in defective notices. On the other hand great injury and practical injustice could result to innocent clients by too literal an interpretation of the statute. It is plain that some indulgence to the human frailties of the profession is in the interest of larger justice to innocent clients. Nor does such indulgence need to work practical injustice to any one.
I would affirm.
FAVILLE, C.J., joins in this dissent.