(dissenting). — The statute provides, in reference to summons, as follows:—
“See. 68. The summons must be directed to the defendant, signed by the clerk, and issued under the seal of the court, and must contain : —
“ Fourth. In an action arising on contract, for the recovery of money or damages only, a notice that unless the defendant so appears and answers, the plaintiff will take judgment for the sum demanded in the complaint (stating it).
“Fifth. In other actions, a notice that unless defendant so appears and answers, the plaintiff will apply to the court for the relief demanded in the complaint.”
The summons in this action contained the following notice: “And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiffs will apply to the court for the relief demanded in their complaint.-”
It is settled in this court that if the cause of action be one in which the plaintiff must apply to the court in order to obtain judgment that the summons must be what has become to be called a “relief summons” (§ 68, 5th div. Code Civ. Proc.), and that if the summons in such case simply notify the defendant that plaintiff will, upon default, take judgment in a given sum, it is insufficient. (Dyas v. Keating, 3 Mont. 495; Sawyer v. Robertson, 11 Mont. 416; 28 Pac. Rep. 456.) This is also true in States having code provisions similar to our section 68 of the Code of Civil Procedure. (Sweeney v. Schultz, 19 Nev. 53; Atchison etc. R. R. Co. v. Nichols, 8 Colo. 189; Brown v. Eaton, 37 How. Pr. 325.) But in the case at bar we have the converse of the proposition. The cause of action is upon a contract, a promissory note, for the recovery of money only. In such case the Code provides that, the notice in the summons shall be: “ That unless the defendant so appears and answers, the plaintiff will take judgment for the sum demanded in the *161complaint (stating it).” Is the summons sufficient if it omits this notice, and contains the notice that the plaintiff will apply to the court for the relief? The California Supreme Court answered this proposition in'the negative in Ward v. Ward, 59 Cal. 139. From that proposition I am not aware that the California court has receded.
In King v. Blood, 41 Cal. 314, the question was not upon the nature of the notice in the summons, but rather upon the sufficiency of the description of the general nature of the cause of action. Bewick v. Muir, 83 Cal. 368, was upon the same point.
In Clark v. Palmer, 90 Cal. 504, the action was for relief, and not on contract for the recovery of money only. The notice in the summons was that “plaintiff will take judgment against you for the relief demanded in his complaint.” The court simply held that this was “in substance a notice that he would * apply to the court’ for that relief,” and hence the.notice satisfied the statute. The case did not hold that a “demand” notice was good in a “relief” cause of action, or vice versa.
The last California case to which my attention has been called is Behlow v. Shorb, 91 Cal. 141; 27 Pac. Rep. 546; but that case did not treat of the distinction between the two sorts of summons. The question was whether the summons stated the amount for which judgment would be taken in case defendants failed to appear. The court held that it did state the amount, so I do not find that the ruling in Ward v. Ward, supra, has been disturbed.
In Lyman v. Milton, 44 Cal. 630, it is said: “ Its form (the summons) is prescribed by law; and whatever the form may be it must be observed, at least substantially.”
' The doctrine of the California cases, and of Nevada and Colorada, supra, is that the provisions of the Code, in reference to the notice in the summons, are mandatory. This was also said in Dyas v. Keating, supra, and in Black v. Clendenin, 3 Mont. 48.
In Sidwell v. Schumacher, 99 Ill. 433, the court says: “ While there is some conflict of authority upon this subject, yet it is believed that the weight of authority establishes the proposition that where the law expressly directs that process shall be in a *162specified form,, and issued in a particular manner, such a provision is mandatory, and a failure on the part of the official, whose duty it is to issue it, to comply with the law in that respect will render such process void.”
Speaking of the distinctions between the two descriptions of causes of action, and the respective summons thereupon, this court said, in Sawyer v. Robinson, supra: “The notice .required to be in the summons is based upon the same distinction, and ought to be observed.”
The argument presented why a “relief” summons is sufficient on a complaint for the recovery of money, is this: That, in a money demand upon a contract, although the clerk may enter default and judgment, yet that power to so enter judgment is inherently in the court, and that if defendant is notified that plaintiff will go to the court to obtain his judgment, he cannot be misled to his prejudice. I notice in this connection, cited by appellant, Hemson v. Decker, 29 How. Pr. 385; Brown v. Eaton, 37 How. Pr. 325; McCoun v. N. Y. & H. R. R. R. Co. 50 N. Y. 176; Berry v. Bingaman (S. Dak.), 47 N. W. Rep. 825; Miller v. Zeigler, 3 Utah, 17. But in each of these cases it is to be noticed that they were decided under a practice requiring a copy of the complaint to be served on the defendant, and in each case a copy of the complaint was so served, and this fact was noted and relied upon in each decision, and in Brown v. Eaton, supra, the court deemed this fact of such importance to the decision that the words stating this fact are by the court italicized. McCoun v. N. Y. & H. R. R. R. Co. supra, was decided on the ground of the non-appealability of the order. But the court says: “ The plaintiff doubtless erred in making his summons as in an action upon contract, but as the mistake was cured by serving with it a copy of the complaint, the order of the court below should be affirmed, if the appeal is not dismissed. I am for a dismissal of the appeal.” So the court holds that the summons was irregular, but that it was cured by the service of a copy of the complaint. The Utah case, Miller v. Zeigler, supra, follows the New York eases; so with the South Dakota case, Perkins v. State. But serving a copy of the complaint is not the practice in this State, and the support, which the above cases have in the fact that a copy of *163the complaint was served, is absent from the case at bar. We have the summons alone, and a requirement of such summons, which has been declared to be mandatory, is omitted. The legislature undoubtedly had the right to declare what should be the constituent part of a summons. They have made that declaration. This court has determined that such declaration is mandatory. This mandatory requirement is neglected in the summons in question. Although the exact point in controversy has never been decided in this court, as it has been in California, I am of opinion that this court has gone so far in declaring these provisions of the code mandatory, that a recession from that direction of decision is more appropriate to legislation than to judicial action.
I am of opinion that under the tendency of decision, the summons was properly declared void.