Belfils v. Flint

15 Or. 158 | Or. | 1887

Loud, C. J.

This was an action brought in a Justice’s Court to recover the possession of certain premises under the Forcible Entry and Detainer Act. Judgment went against the defendant Belfils in that action, for the possession of the premises for want of an answer. He then applied to the Circuit Court, and obtained a writ of review, which, upon the hearing, that court dismissed, and judgment was entered in accordance therewith, from which he appeals to this court.

Summons, when returnable. The first assignment of error is to the effect that, in an action of forcible entry and detainer, a summons which requires the defendant to appear and answer in less than six days after its date is void. The summons was dated October 15, 1886, and required the defendant to appear before the justice on the nineteenth day of October, 1886. The objection is based on the assumption that section 8 of the Justice’s Act (Code Civ. Proc. 463), is applicable to actions of forcible entry and detainer. That section provides that the summons must require the defendant to appear at a time named therein, not less than six nor more than twenty days from the date thereof. Section 4 of the Forcible Entry and Detainer Act provides that the action, except as hereinafter specially provided, shall be in all respects conducted as other actions before justices of the peace. Section 5 provides that “the summons shall be served and returned as in other cases. Such service shall not be less than two nor more than four days before the day of trial appointed by the justice.” (Misc. Laws, 614.) It is argued that by force of these provisions, and particularly the words “shall be served and returned as in other cases,” section 8, supra, as to time, applies, and consequently that the summons was void, as the justice could not bring the cause to trial in less than six days.

We are not able to concur in this result. The language referred to, “served and returned as in other cases,” only means that the service is to be made in the same manner, whether personally or otherwise, as is done in other cases, and that when done, the officer make a return thereof to the court — a report showing the manner in which he performed the duty imposed upon him — as is done in other cases. It has no reference to the time prescribed by section 8 for other actions, as section 5 shows it was the evident intention to make the time less than that prescribed by section 8. It only indicates that the modes of doing these official acts is the same as in other cases, although the time of appearance of the defendant is shortened after service has been obtained in this character of action. The action of forcible entry or unlawful detainer is a summary proceeding, devised to secure a speedy restitution of the premises forcibly or unlawfully detained. This being its object, the purpose of section 5, supra, is intended to aid in giving it that effect, which is inconsistent with the construction claimed.

It is next assigned as error that the court lost jurisdiction by granting a continuance for more than two days. The transcript shows that the first service was deemed defective, and that the action was continued in order that another summons might be served. For myself, I do not think this was a continuance within the meaning of section 6, “that no continuance shall be granted for a longer period than two days, unless the debt,” etc., or that the authorities cited sustain a contrary view. But this assignment becomes unimportant and unnecessary to decide, in view of the fact that the service of the second summons is deemed fatally defective.

Proof of service of summons. The return on the summons does not show that a certified copy of the complaint was served. It is assumed that a justice of the peace is authorized to certify to the copy of the complaint, although the act regulating the practice in Justice’s Court does not expressly mention the subject of certifying. (See Marooney v. McKay, 3 Or. 372.) The provisions of the law applicable are Code, p. 115, § 54; p. 463, § 7; p. 465, §§ 20-22. Now, the return on the summons does not show that a copy of the complaint certified by the justice of the peace before whom the cause was pending, or certified to by the plaintiff, his agent or attorney, was served on the defendant. This is a statutory requirement which must be observed before jurisdiction can be assumed or conferred. 'Whether it has been complied with or not, we must look to the return of the officer upon whom) is imposed this duty. As the return of that officer does,not: show that a copy of the complaint, certified as required, was served,, the service is insufficient to warrant a judgment by- default against the defendant.

For this reason we are constrained to reverse the judgment; off the court below, with directions to reverse and set aside the judgment of the Justice’s Court.