![]() While this statute prevails over state law and is without the Conformity Act (Mexican Central Ry. provides that No summons * * * shall be abated, arrested, quashed, or reversed for any defect or want of form.' Obviously, this provision does not extend to defect or want of substance. As was said in this case: "Section 777 of title 28 U.S.C.A. ยงยง 723b, 723c, and particularly Sections 767 and 777 supra, whether defects of summons were matters of form or of substance had to be determined by state law under the Conformity Act, Section 724, title 28, unless there was a valid governing rule of court. Prior to the promulgation by the Supreme Court of the Federal Rules of Civil Procedure pursuant to the rule making Act of 1934, 48 Statutes 1064, 28 U.S.C.A. This is true both under Sections 767 and 777 of the Judicial Code, 28 U.S.C.A., and under the Federal Rules of Civil Procedure, 28 U.S.C.A. The question then as to whether or not the summons in this case is ineffective to give jurisdiction depends upon whether the admitted defect is one of mere form or of substance. A summons, which is ineffective to give the court jurisdiction, may not be amended. In such case, the broad and liberal powers of the court as to amendments under the Rules of Civil Procedure could not be exercised. If this misnomer or mistake on the part of the plaintiff constitutes a fatal defect, that is a defect of substance and not one merely of form, the process would be void ab initio and the court would not have acquired jurisdiction over the person of "The Index-Journal Company", and there would be as recognized by Rule 12(b) both insufficiency of process and insufficiency of service of process. The question for decision is as to the effect or result of the mistake or error in the name of the defendant as stated in the summons - the designation of a nonexisting corporation. ![]()
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