Definition
Summons and severance is a historical procedural term describing a two-step process in common law joint actions: where two or more parties are joined as plaintiffs or defendants, a court could, under specified conditions, issue a summons directed at a non-appearing or uncooperative party and then, upon that party's continued default or refusal to proceed, enter a judgment of severance. The severance judgment allowed the remaining party or parties to prosecute the action independently, without being held back by the absent co-party.
The operative concept is the severance itself. The summons was not the substantive remedy but a procedural prerequisite — a formal notice compelling attendance — without which the judgment of severance could not issue in certain cases. Once the summons was served and the defaulting party failed to respond, the court could sever the action, freeing the remaining party to proceed alone.
Common Confusion
Three distinct legal concepts share the word "severance" and must not be conflated:
1. Summons and severance / procedural severance (historical): The common law doctrine described here, allowing a co-party to be cut from a joint action.
2. Severance of claims (modern civil procedure): The court's power to separate claims or parties in pending litigation for independent adjudication. A functional descendant of the historical doctrine but governed by procedural rules, not the common law summons process.
3. Severance pay / severance agreements (employment law): Compensation and release arrangements upon termination of employment. Entirely unrelated in origin and doctrine.
Researchers searching historical indexes or digests under "severance" must identify which sense governs the source material before drawing analytical conclusions.
Why It Matters in Research
This term is primarily a relic of common law pleading and is unlikely to appear in modern procedural codes under this name. Researchers encountering it in historical materials — particularly pre-19th century English and early American common law records — should recognize it as describing what modern procedure handles through misjoinder rules, voluntary dismissal, or severance under civil procedure rules.
The key research trap: do not conflate this term with modern "severance" in its two most common contemporary senses — severance of claims under civil procedure rules (e.g., Fed. R. Civ. P. 21) or severance pay in employment law. Those are unrelated doctrines that happen to share a word. Historical sources indexed under "summons and severance" or "severance" may require disambiguation depending on the period and jurisdiction of the source.
When tracing the historical doctrine, Bouvier's redirects entirely to the entry for SEVERANCE, signaling that even 19th-century practitioners treated "summons and severance" as a compound label for what was substantively a severance judgment. Black's, drawing on Jacob's Law Dictionary, confirms this reading explicitly. Researchers working in early American or English equity and common law records should follow the SEVERANCE thread rather than treating the "summons" component as independently significant.
Historical Dictionary Support
Black's Law Dictionary provides the most substantive treatment, citing Jacob's Law Dictionary for the clarifying proposition that the "proper name" of the doctrine is simply "severance" — the summons being merely the procedural mechanism that triggers the right to sever in applicable cases. This framing is useful because it prevents researchers from treating the term as two separate doctrines joined by "and."
Bouvier's adds nothing substantively beyond a cross-reference to SEVERANCE, which confirms that by Bouvier's time the compound phrase was already understood as shorthand for a single procedural remedy. Neither dictionary provides extensive elaboration, which itself signals that the term was well-understood within the common law procedural tradition it inhabited and did not require lengthy definition for practitioners of the era.
Neither source bridges to the modern procedural equivalents — that gap is left entirely to the researcher. Historical dictionaries also do not address severance in the employment compensation or property damage senses, which emerged as distinct legal concepts in different contexts.
Encyclopedia Cross-Reference
For the modern employment law counterpart: Severance Agreements, Releases, and Settlement of Claims — The Law Mind Employment & Labor Law Encyclopedia (employment_123)
For severance in the context of partial property takings: Eminent Domain — Partial Takings and Severance Damages — The Law Mind Property Law Encyclopedia (property_113)