186 P.2d 884 | Mont. | 1947
Lead Opinion
On May 27, 1946, the district court of Glacier county, Montana, on motion of the defendant Sherburne Mercantile Company, made an order setting aside defendants' default, vacating the judgment rendered against defendants ten years before, and ordering the action dismissed for want of jurisdiction. From that order plaintiff has appealed.
Jurisdiction. Jurisdiction as applied to a particular[1] controversy is the power to hear and determine that controversy. Reed v. Woodmen of the World,
Three things are essential to the jurisdiction in any case:[2] First, the court must have cognizance of the subject-matter of the action; second, the proper parties must be before the court; and third, the action of the court must be invoked by proper pleadings.
Jurisdiction over the subject matter. By jurisdiction over[3] the subject matter is meant the nature of the cause of action and the relief sought. Jurisdiction of the subject matter is conferred only by the Constitution and the laws.
On August 11, 1932, the plaintiff, Grace Goss Haggerty, through her counsel, G.S. Frary, Esq., of Cut Bank, filed in the district court of Glacier county, Montana, her duly verified complaint against the defendants, Sherburne Mercantile Company, a Montana corporation, and Otto J. Hartwig, an individual, under the provisions of sections 9479-9489, Revised Codes of *390 Montana 1935, seeking judgment to determine the adverse claims of the defendants to certain lands in Glacier county, Montana, of which plaintiff claims to be the owner in fee simple.
Section 11 of Article VIII of the Constitution of Montana and[4] section 9479, Revised Codes of Montana, confer upon the district court of Glacier county jurisdiction of the subject matter of this action involving the title of real property situate in such county.
The complaint herein states all the ultimate facts essential to state a good cause of action under sections 9479-9489, supra. Thus did the plaintiff properly invoke the action of the district court by the methods established by law for judicial procedure and thus did that court acquire jurisdiction over the subject matter of the action.
Jurisdiction over the Person. Jurisdiction over the person[5] is properly exercised when the party to be acted upon is before the court, either constructively or in fact. Jurisdiction of the defendant may be acquired by various means. It may be compelled by the action of the plaintiff, or, it may be voluntarily conferred by defendant's consent and submission to the court.
Summons was issued herein on August 11, 1932, at the time the[6] complaint was filed. Section 9110, Revised Codes, provides that the "summons may be served by the sheriff of the county where the defendant is found, or by any other person over the age of eighteen, not a party to the action." Subdivision 1 of section 9111, Revised Codes, provides that if the suit is against a corporation formed under the laws of this state the summons must be served by delivering a copy thereof "to the president or other head of the corporation, secretary, cashier, or managing agent thereof." When the summons is served by the sheriff he is required to make return thereon, — the return being merely a short statement in writing made by the officer under his official oath certifying what has been done in serving the summons. See Montgomery Ward Co. v. District Court, *391
Five days after suit was instituted the defendant Sherburne[7] Mercantile Company took cognizance of the action and retained George E. Hurd, Esq., an attorney-at-law of Great Falls, Montana, to handle the case for defendants and, in writing, authorized Mr. Hurd to appear in the action and to "admit service for the Sherburne Mercantile Company and Otto J. Hartwig." By authorizing their counsel to "admit service for" them the defendants voluntarily waived compliance with the provisions of the Codes providing for personal service of summons on each defendant. Subds. 1 and 6 of section 9111, Rev. Codes.
On the sixth day, after the commmencement of the action, defendants' counsel, Mr. Hurd, gave written notice to plaintiff's counsel, Mr. Frary, of the authority so conferred upon him by defendants and further wrote: "If you will send me the summons and copy of complaint, I will make admission of service." Thus did defendants, through their counsel, direct the manner in which they desired summons served and notice of the action given, thereby waiving the manner and form of service of summons and return made thereon provided for in actions 9110 and 9111, Revised Codes.
Copy of complaint and summons were sent to defendants' counsel, Mr. Hurd, on October 8, 1932, as he had directed, and on October 12, 1932, in a letter to plaintiff's counsel, Mr. Hurd admitted that he had received such copies and agreed to file an answer on behalf of the defendants and thus submit to the jurisdiction of the court. Such letter constitutes a written admission of defendants, made by and through their counsel, that summons and a copy of the complaint herein had been delivered to said counsel, Mr. Hurd, he being the person designated by defendants to admit service and to appear in the action for *392 them. Defendants' written admission of service has the same legal effect as personal service of the summons and a copy of the complaint upon defendants made in the manner and form provided in subdivisions 1 and 6 of section 9111, Revised Codes, had compliance with such provisions not been waived by defendants.
Such admission of service made in counsel's letter serves the same purpose as the return made on a summons served by the sheriff. In one case the return made by the sheriff supplies the proof of the service of summons and complaint, subd. 1, sec. 9122, Rev. Codes, and in the other case the written admission
of the defendant supplies such proof, subd. 4 of sec. 9122, Rev. Codes. See also, Hendrix v. Fuller,
The court is deemed to have acquired jurisdiction of the[8, 9] parties from the time of the service of summons and a copy of the complaint in a civil action, sec. 9123, Rev. Codes. The written admission of defendants evidences the fact that plaintiff fully complied with defendants' directions by causing copy of the summons and copy of the complaint to be delivered to the agent selected, appointed and empowered by defendants to appear in their behalf and to "admit service for" them. Sec. 9122, subd. 4 and sec. 9123, Rev. Codes; Smith v. Moore Mill
Lbr. Co.,
In March 1933, when defendants had been in default for some four months, plaintiff's counsel wrote defendants' counsel about the matter and in reply defendants' counsel, in a letter dated *393 March 11, 1933, wrote: "Dear Mr. Frary: Your letter dated March 5th, relative to filing answer in the above entitled case, has been received. I am just getting to the point where I am out of jams for a little while. I trust that I will be able to get thisanswer prepared sometime next week. In looking over the file I find that I may require some additional information, but I willendeavor to get it, and get the case at issue." (Emphasis supplied.)
Defendants failed to keep the promises and representations made in Mr. Hurd's letters of October 12, 1932, and March 11, 1933, supra, and no answer was made to plaintiff's complaint.
In December, 1935, the law firm of Hall and McCabe succeeded Mr. Frary as plaintiff's counsel in this action, and on December 26, 1935, plaintiff, through her new counsel, caused defendants' default to be entered upon filing in the office of the clerk of court the original summons with copies of Mr. Hurd's letter of August 17, 1932, and Mr. Frary's letter of October 8, 1932, attached.
Mr. Hurd's letters to Mr. Frary dated August 13, August 17, and October 12, 1932, and March 11, 1933, and a copy of Mr. Frary's letter to Mr. Hurd dated October 8, 1932, were filed in the cause and, on February 19, 1936, the court heard evidence on behalf of plaintiff and rendered judgment for her.
Two days later plaintiff gave written notice of the entry of the judgment of February 19, 1936, to defendants and to their counsel, the notice being given directly to the defendant Sherburne Mercantile Company as well as to its counsel, George E. Hurd, Esq.
Three weeks later (March 11, 1936), upon his application therefor, the complete court files containing all the papers mentioned above, were forwarded to Mr. Hurd at Great Falls and there the matter rested with the judgment standing wholly unchallenged for more than nine years and ten months after it was docketed.
Motion to Vacate and Dismiss. On January 12, 1946, the *394 defendant Sherburne Mercantile Company, through new and different counsel, namely, Lloyd A. Murrills, Esq., of Cut Bank, filed in the district court a motion to set aside the order of default of December 26, 1935, to vacate the judgment of February 19, 1936, and to dismiss the action, contending that the district court was without jurisdiction herein. An order to show cause issued on said motion, to which plaintiff made a verified response and the defendant Sherburne Mercantile Company filed a reply.
On March 5, 1946, the defendant Sherburne Mercantile Company filed a motion invoking the jurisdiction of the district court to strike from its files the original letters from defendants' counsel, Hurd, to plaintiff's counsel, Frary, dated August 13, August 17, October 12, 1932, and March 11, 1933, together with the copies thereof and also to strike from the files copies of the letter dated October 8, 1932, from Mr. Frary to Mr. Hurd which accompanied the copies of complaint and summons when same were forwarded to Mr. Hurd and on April 10, 1946, the district court made its order denying defendants' said motion to strike.
In 2 Bancroft's Code Practice and Remedies it is said: "If a[10-12] party wishes to insist that he is not in court, he must keep out for all purposes except to make that objection, that is to say, he must appear for the sole purpose of objecting to the exercise of jurisdiction over his person. He cannot simultaneously appear both specially and generally in the same proceeding, since the latter waives the former." P. 1175, sec. 800. "A motion raising no question of jurisdiction over the person, or raising both jurisdictional and nonjurisdictional questions, is a general appearance." P. 1183, sec. 805, notes 8 and 9. "A general appearance may be made after as well as before judgment." P. 1189, sec. 813. "It is a well settled rule, laid down in numerous cases and sometimes embodied in code provisions, that a voluntary general appearance is a waiver of the issuance or service of summons and consequently of any defects or irregularities *395 therein. This is true, * * * whether the party appears before or after judgment." Pp. 1192, 1193, sec. 815, notes 8 and 9. See also sec. 9123, Rev. Codes of Montana 1935.
"Process is employed only to obtain jurisdiction over the[13, 14] person of the defendant. Its only purpose is to bring him into court, and when he makes a general appearance the summons ceases to have any function and any defects in it or in the proceedings by which it was obtained become immaterial. Objections to the return of summons are waived by a general appearance. The same is true as to a failure to file a return of summons within the required time." 2 Bancroft's Code Practice Remedies, p. 1194, sec. 815, notes 14-16.
In Gravelin v. Porier,
On May 27, 1946, the district court, after hearing evidence on behalf of plaintiff in opposition to defendants' said motion of January 12, 1946, made an order setting aside defendants' default, vacating the judgment and dismissing the action.
Grounds of Motion to Vacate and Dismiss. Defendants' motion to set aside the order for default, to vacate the judgment and to dismiss the action was based upon various contentions, namely: (1) "That the summons was not served at all"; (2) that "the court was without any jurisdiction whatever over the defendants or either of them"; (3) that if the court had acquired jurisdiction over the defendants it had lost same in "that the Summons was not served within three years and return thereof made within three years after the commencement of the action and no appearance was made by either of the defendants within *396 three years after the commencement of the action or at all as required by section 9317, part 7, of the Revised Codes of 1921 and 1935" and (4) that "the original summons has been returned to the court and has never been served and the time within which an alias summons may be issued, as provided in Section 9108 of the Revised Codes of 1921 and 1935, has expired."
The foregoing contentions of the defendant Sherburne Mercantile Company will be examined in inverse order.
Section 9108, Revised Codes, Inapplicable. Section 9108,[16] Revised Codes of Montana 1935, provides for the issuance of alias summons in cases where the original summons has been lost or where it "is returned without being served on any or all of the defendants, or part of defendants." The summons herein was not lost nor do any of the other conditions specified in said statute obtain for which reason no alias summons was needed nor does section 9108, Revised Codes, supra, have any application whatever.
Waiver. Section 9106, Revised Codes, expressly provides that[17] "at any time within one year after the complaint is filed, the defendant may, in writing, * * * waive the issuing of summons." "Such waiver or any other voluntary general appearance dispenses with the necessity for the issuance or service of summons." 2 Bancroft's Code Practice Remedies, p. 1162, sec. 788, note 6.
On August 16, 1932, being five days after the complaint was filed herein, the defendant Sherburne Mercantile Company, through its president and general manager, wrote a letter to its counsel, George E. Hurd, Esq., stating: "My dear Mr. Hurd: In reply to yours of the 13th inquiring whether or not you are authorized to handle the Grace Goss Haggerty case and appear in our behalf andadmit service for the Sherburne Mercantile Company and Otto J. Hartwig, this is your authority to do so. * * *" (Emphasis supplied.)
The purpose of serving a summons is to give notice to the[18] defendant and thereby afford him the opportunity to defend *397
himself or his property — an essential to due process of law. As service of process affects only jurisdiction over the person, it may be waived. State ex rel. Murphy v. District Court,
Section 9317, Revised Codes, Inapplicable. Section 9317,[19] Revised Codes of Montana 1935, enumerates the cases where an action may be dismissed or a judgment of nonsuit entered. Subdivision 7 of section 9317, Revised Codes, provides for dismissal of the action by the court "unless summons shall have been issued within one year, and served and return made within three years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said three years."
Summons Issued. Summons was issued herein on the day the suit was filed, being well "within one year * * * after the commencement of said action." Subd. 7 of sec. 9317, Rev. Codes.
Summons Served. The summons herein was not served upon the defendant Sherburne Mercantile Company by delivering a copy thereof "to the president or other head of the corporation, secretary, cashier, or managing agent thereof" as provided in subdivision 1 of section 9111, Revised Codes, for the reason that five days after the action was instituted said defendant authorized its counsel, Mr. Hurd, to "appear in our behalf and admit service for the Sherburne Mercantile Company" pursuant to which authority defendants' said counsel, on the following day (August 17, 1932) by letter to plaintiff's attorney gave the plaintiff written notice, stating: "Dear Mr. Frary: I am authorized to admit service in Hagerty vs. Sherburne Mercantile Company, et al. on behalf of the Sherburne Mercantile Company * * *. If you will send me the summons and copy of complaint, I willmake admission of service." (Emphasis supplied.)
This is a method of making appearance. Section 9782, Revised Codes, inter alia, provides: "A defendant appears in an action when he answers, demurs, or gives the plaintiff written noticeof his appearance, or when an attorney gives notice of *398 appearance for him, or has such appearance entered in open court." (Emphasis supplied.) See Cornell University v. Denny Hotel Co.,
The "admission of service" authorized by the defendant Sherburne Mercantile Company, which its counsel in his letter of August 17, 1932, promised to "make," is the "admission" provided for in subdivision 4 of section 9122, Revised Codes, which, in law, constitutes due and legal "proof of the service of summons and complaint." Sec. 9122, Rev. Codes.
Copy of complaint and summons was delivered to defendants' counsel as he had directed and counsel made written admission of such delivery as follows:
"George E. Hurd "Attorney and Counselor "Suite 517 Strain Building "Great Falls, Montana.
"Sherburne Mercantile Co. "Grace Goss Haggerty v. "October 12, 1932.
"Mr. Gerald S. Frary "Cut Bank, Montana
"Dear Mr. Frary:
"Your letter dated October 8th, inclosing copy of complaintand copy of summons in the above entitled matter has just beenreceived. "I will file an answer on behalf of Sherburne MercantileCompany and Otto J. Hartwig in this case as soon as I can get toit.
"I find that shortly after your letter of August 12th was received, I procured authority to appear on behalf of Sherburne Mercantile Company, and advised you to that effect on August 17th. I now have authority to appear on behalf of Otto J. Hartwig. *399
"It may be that there will be some delay in my preparing the answer herein, owing to the fact that I am very much crowded with preparation of complaints and answers, and of disposing of them as rapidly as possible.
"You may rest assured, however, that I will not undulydelay the filing of the answer.
"Yours truly,
"GEH :RT Geo. E. Hurd."
(Emphasis supplied.)
Thus, in the exact manner designated by defendants, were copies of summons and complaint delivered to defendants' duly appointed agent and by him accepted and acknowledged, all within three months after the filing of the complaint herein and well "within three years after the commencement of said action" as provided for in subdivision 7 of section 9317, Revised Codes, supra.
"Compliance with the formalities attending service of process may be dispensed with by securing from the party to be served an acceptance or acknowledgement of service. Generally, when process is accepted within the jurisdiction of the court, it is sufficient to confer jurisdiction to pronounce judgment." 42 Am.Jur., Process, p. 31, sec. 33.
In Gallagher v. Motors Finance Corp.,
Proof of service. The written admission made by defendants, subd. 4, sec. 9122, has the same legal effect as areturn made by the sheriff when summons has been served by him, subd. 1, sec. *400 9122. Each writing constitutes proof of the same fact, namely: "Proof of the service of summons and complaint." Sec. 9122. The voluntary "written admission made" by defendants two months and one day after this suit was instituted is equivalent to "return made," subd. 7, sec. 9317, supra, by a sheriff within such time in cases where compulsory service of process is relied upon to establish that the court has acquired jurisdiction over the person of defendants.
Return Made. Defendant Sherburne Mercantile Company contends[20] that the phrase "return made" employed in subdivision 7 of section 9317, Revised Codes, refers to the physical act of filing the original summons in the action. Such claim overlooks the fact that "return made" is a technical term which must be given the well-understood and appropriate meaning which it has acquired in law.
In Montgomery Ward Co. v. District Court,
"The question is whether in this case the summons was returned within the meaning of the statute [sec. 9108, Rev. Codes], and depends upon the proper construction of the word `returned.'
"Section 15, Revised Codes, provides that words used in the Code shall be construed `according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, * * * are to be construed according to such peculiar and appropriate meaning or definition.' * * *
"Here the word `return' is used in connection with the word `summons' and it must, under Section 15, supra, be construed according to its context and also according to any technical, peculiar or appropriate meaning which it has acquired in that connection. As so construed it is apparent that to return a summons is not the same as to return a borrowed book or a hired horse; that it has a specialized meaning at law well known to lawyers and judges, which includes more than the mere idea *401 of bringing it back to the office from which it issued. * * * A `return' of a writ is a statement in writing made by a sheriff or other ministerial officer to the court, under his official oath, of what has been done touching the execution of the writ. * * *
"`Return' of summons or other process is similarly defined in 50 C.J. 561, section 257, and 42 Am. Jur. 104, Section 117, and in decisions too numerous to mention."
In Rood v. McDonald,
In Bourgeious v. Santa Fe Trail Stages,
"Objections to the return of summons are waived by a general appearance. The same is true as to a failure to file a return of summons within the required time." 2 Bancroft's Code Practice Remedies, p. 1194, sec. 815, notes 15 and 16.
In Federal Land Bank of Berkeley v. Brinton,
It is the fact of service that gives jurisdiction, not the proof of it. In re Estate of Newman,
In Hawkins v. Boyden,
In Phillips v. Corey, 1 Ind. T. 567, 45 S.W. 119, 120, the court said: "The contention of counsel for appellants is that the marshal's return on the summons as to T.J. Phillips was not in accordance with law. It appears, however, from an examination of the record in the case, that the marshal did not make any return as to Phillips. He simply wrote him a letter in which he requested him to accept service in the case, and on the letter were indorsed the words: `I accept service in above case. When *403 will it be tried? [Signed] T.J. Phillips.' The record discloses the fact that Phillips acknowledged in open court, at the time he appeared specially to make his motion to quash the return, that he did receive the letter indicated, from the marshal, and that he wrote his acceptance as indicated, and signed his name to it. Counsel for appellants insist that this acceptance is not in accordance with the provisions of Mansf. Dig. Ark. sec. 4978, which provides that service of summons may be acknowledged by the defendant by an indorsement upon the summons signed and dated by him, attested by a witness, and that the affidavit of such witness shall be proof of the service. There was no necessity for the affidavit of a witness in the case at bar. The appellant Phillips appeared specially in court, and acknowledged that the acceptance of service was in this handwriting, and that he had signed his name thereto. Counsel insist, however that this acceptance must have been indorsed upon the summons it does not appear from the evidence in this case that a copy of the summons accompanied the marshal's letter, but it is plainly inferable from the text of the marshal's letter and the acceptance thereon that a copy of the summons did accompany the marshal's letter. However this may be, appellant Phillips was informed of the title of the case, and over his own signature, which he acknowledged in open court to be genuine, he accepted the service. The court, in overruling his motion to quash the return, did not prejudice appellant Phillips' substantial rights. He was notified of the pendency of the suit. He accepted the service which the marshal requested him to accept, but qualified his appearance by stating that it was made for the sole purpose of moving to quash the return.
"We are of the opinion that appellant Phillips accepted service in this case in such a manner as required him to take notice of the pendency of the suit, and to appear and make defense thereto, if he had any defense to submit. His co-defendant had no excuse or even a pretext to refrain from defending the action. We may assume, under such circumstances, that the appellants *404 had no meritorious defense to the action, and that their present appearance is for the purpose of taking advantage of the merest technicalities. Their substantial rights have not been prejudiced, and no undue advantage has been taken of them. The judgment of the court below is therefore affirmed."
In Berry v. Berry,
On the principle recognized by this court in Kasun v. Todevich,
Upon receiving the written notice of February 21, 1936, of the[22] entry of the decree and judgment, defendants were accorded the right by section 9187, Revised Codes, to apply to the district court for relief if either the order of default or the judgment had been taken against them through their mistake, inadvertence, surprise or excusable neglect "provided, that application therefor be made within reasonable time, but in nocase exceeding six months after such judgment, order, orproceeding was taken." Sec. 9187, Rev. Codes. Had defendants been dissatisfied with the judgment they were accorded the right by subdivision 1 of section 9732, Revised Codes, to appeal to this court provided they did so "within six months after the entry of such judgment."
When six months elapsed after notice was given to defendants of the entry of the judgment against them and they made no application for relief therefrom either under section 9187 or section 9732, supra, the judgment entered February 19, 1936, became final and the district court then lost jurisdiction.
The defendants had six months, not ten years, after the entry of the order of default to apply for relief therefrom under section 9187. They had six months, and not nine years and ten months, under subdivision 1 of section 9732, Revised Codes, in which to appeal from the judgment entered against them.
"In natural reason one should not complain of a thing done[23] with his consent. And the law, in all its departments, follows this principle.
"If, except where some counter doctrine presses with a superior force forbidding, a party has requested, or consented to any step taken in the proceedings, or if at the time for him to object thereto he did not, he cannot afterward complain of it, *406
however contrary it was to his constitutional, statutory, or common-law rights." Bishop's New Criminal Procedure, Vol. 1, sec. 117, quoted in State v. Brownfield,
Commitment. Defendants' counsel represented to plaintiff's[24] counsel: "I will file an answer on behalf of Sherburne Mercantile Company and Otto J. Hartwig in this case as soon as I can get to it." This authorized promise, agreement and commitment became and is binding upon the defendants and upon any and all counsel then or thereafter representing defendants in this action.
Had the answer been made as promised none of the questions[25] here presented could have arisen. The answer would have put an end to any question as to service of summons, return made on summons, jurisdiction of the court over the persons of the answering defendants or appearance in the action. An answer filed is ample proof of submission to the jurisdiction of the court rendering wholly superfluous the filing of any return made on summons. Had defendants filed their answer as agreed it then would have been entirely immaterial what was done with the summons, or with the service or return made thereon. Russell v. Craig,
This court must hold the defendant corporation and its counsel[26-28] to their promises and commitments. These representations were relied upon by plaintiff's counsel to whom they were made. Plaintiff's counsel had the right to so rely. Neither *407
the district court nor this court should relieve defendant from the performance of its valid commitments voluntarily made. To aid it in this behalf would enable it to take advantage of its own wrongs and to perpetrate fraud upon plaintiff. Courts abhor fraud. They will not knowingly assist the wrongdoer in his evil enterprise. For this reason defendant was in no position to urge in the district court, and it is in no position to argue in this court, that by failing to keep its promise and answer the complaint, it failed to submit its person to the jurisdiction of the district court. As was said by Judge Learned Hand in the case of Armstrong v. Langmuir, 2 Cir.,
The provisions of subdivision 7 of section 9317, Revised Codes, have no application in cases such as this where the summons shall have been issued within one year and where defendant, in writing, shall have waived the service thereof within three years after the commencement of the action.
The district court was wholly without jurisdiction to grant the motion of the defendant Sherburne Mercantile Company to set aside its default, to vacate the decree or to dismiss the action, and the order granting said motion is vacated and set aside as null and void. It is so ordered.
On rehearing had the opinion and decision pronounced July 1, 1947, in this cause is ordered withdrawn and the foregoing is substituted therefor. *408
Associate Justices Choate and Metcalf concur.
Mr. Justice Gibson not participating.
Dissenting Opinion
The question involved on this appeal is relatively simple. Subdivision 7 of section 9317, Revised Codes, in part reads:
"No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within one year, and served and return made within three years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said three years."
The action was commenced on August 11, 1932. Praecipe for the default of defendants was filed on December 26, 1935, and their default entered and judgment against them followed thereafter.
On January 12, 1946, defendant filed a motion to vacate the default and decree upon the ground that they were entered in violation of subdivision 7 of section 9317 in that at the time they were entered the court had no jurisdiction to do more than to dismiss the action.
When the default and decree were entered more than three years had elapsed after the commencement of the action and the only question before the court was, had summons been served and return made "within three years after the commencement of said action" under subdivision 7 of section 9317, or had defendant within the three-year period made an appearance?
Proof of service in the case consisted of the letters referred to in the majority opinion and some of these were attached to the original summons and filed on December 26, 1935, the same day that defendants' default was entered. This, it should be noted, was long after the three years mentioned in subdivision *409 7 of section 9317 had elapsed. No other proof of service was filed before that time.
The trial judge ruled that the only authority which the letters conferred upon Mr. Hurd was to file an answer without waiting for formal service of process; that the letters did not constitute an appearance; that summons was not served upon defendants and no return of service made within the three-year period named in section 9317.
My associates hold that the letters constituted an admission of service under subdivision 4 of section 9122. If that be accepted as true, it does not aid plaintiff. My associates realizing this go further and make the broad assertion that the admission of service under subdivision 4, section 9122, has the same legal effect as a return made by the sheriff when summons has been served by him.
In this I think my associates are palpably in error. "A `return' of a writ is a statement in writing made by a sheriff or other ministerial officer to the court, under his official oath, of what has been done touching the execution of the writ." Schmidt v. Schmidt,
Did the letters constitute an appearance by defendants within the exception stated in subdivision 7 of section 9317, Revised Codes? Obviously they did not. An appearance means "the coming into court by either party to an action." 6 C.J.S., Appearances, sec. 1. It is "the first act of the defendant in court." 3 Am.Jur. 783. The letters in question here simply show that Mr. Hurd had authority to appear for the defendants but they do not show that he ever exercised that authority. They do not constitute an appearance within the meaning of section 9782, Revised Codes, but at most show a promise to appear at some indefinite time in the future. Also plaintiff conceded that defendant made no appearance by so reciting in her praecipe for default.
Where, as here, there was no appearance by defendant and no "return" made within three years, the court lost jurisdiction to do anything but dismiss the action. Siskiyou County Bank v. Hoyt,
The judgment which was entered contrary to subdivision 7 of section 9317, being void for want of jurisdiction, was subject to attack at any time either directly or collaterally and it was not incumbent upon defendants to resort to section 9187, Revised Codes, or to appeal therefrom under section 9732.
My associates assert that defendants, if allowed to prevail here, will perpetrate a fraud upon plaintiff. Failure to comply with subdivision 7 of section 9317 was due to plaintiff's neglect. Any damage sustained by plaintiff as a result of sustaining the trial court's ruling will not be due to defendants' fraud but to plaintiff's neglect.
Furthermore, if plaintiff is actually the owner of the property she will not suffer greatly if she be compelled to try her case on the merits, which still can be done even though this action be dismissed as commanded by statute. We have no authority to disregard valid acts of the legislature. My associates, in my opinion, are nullifying the plain wording of our statute.
There are many other questions discussed in the majority opinion. Many of the assertions therein are of well settled principles of law not questioned here and I fail to see their applicability to the points at issue in this case. Likewise, many cases are cited, most of which proclaim some elementary principle of law not questioned here. There is no case supporting the essential conclusion that admission of service not exhibited to the court constitutes a return of the summons at the time the admission was made.
The case of Federal Land Bank of Berkeley v. Brinton,
What has been said regarding the Berkeley Case applies also to the case of Bourgeious v. Santa Fe Trail Stages, supra, so far as it holds that failure to file a return does not affect the jurisdiction of the court. In that case no statute such as subdivision 7 of section 9317 was referred to.
I concede that where judgment is entered prior to the three-year period, defective proof of service may be amended and thus the return amended nunc pro tunc, and to this extent it is fact of service rather than proof thereof that gives the court jurisdiction. That was so held in Jones v. Gunn,
But in this state, by virtue of the statute, the court loses jurisdiction of a case except to dismiss it after the three-year period unless return or appearance is made within that time. The statute was designed to hasten prosecution by imposing the penalty of dismissal for want of prosecution.
My associates point out the fundamental principle that a general appearance waives jurisdictional questions. There has been no general appearance in this case. Certainly my associates do not mean to infer that when a person moves to set aside a judgment void for want of jurisdiction when entered, he thereby cures the jurisdictional point retroactively.
I think the trial court was correct in its conclusion and that the order should be affirmed.
Rehearing denied December 2, 1947. *413
