213 N.W. 14 | S.D. | 1927
In No. 6on the appeal is by plaintiffs from an order quashing the summons and denying leave to amend the summons.
The summons was signed as follows:
“Harry A. Hageman, attorney for plaintiffs. Residence, 835 Laurel Ave. Office, 1508 Merchants’ Bank Bldg., St. Paul, Minnesota.”
The body of the summons required defendant “to serve a copy of your answer to the said complaint on the subscriber at his offiice in the city of St. Paul in the county of Ramsey and in the state of Minnesota.”
Mr. Hageman had not been admitted to practice law in the courts of this state. 'Section 2330, Rev. Codei 1919, provides (italics oúrs) :
“Requisites of Scommons. The summons shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and
Before the time for answer expired, defendant appeared specially for the purpose of objecting to the jurisdiction of the court, and moved to quash the summons, for that it was not signed by an attorney admitted to practice in this state, and for that the summons required the service of answer at a point without the state. Plaintiffs countered with a motion to amend the summons by adding the names of McNulty & Campbell, attorneys of this state, and by amending t'he recital in the summons so that it would require answer to be served at their office in the city of Aberdeen in this state. Both motions were heard together, and the court entered an order granting defendant’s motion to quash and denying the motion of plaintiffs to amend. Therefrom plaintiffs appeal.
A civil action in the circuit court must be commenced by the issuance and service of a summons. Rev. Code 1919, § 2329.
In Ramsdell v. Duxberry, 14 S. D. 222, 85 N. W. 221, this court said:
“In many of the states, including California and others of the Pacific coast states, an action is commenced by the filing of the complaint. Of course, in such a case the issuance of a summons is not absolutely essential if a party defendant voluntarily appears and answers the complaint. But when, as in this state, an action is commenced by the issuance and service of a summons, there can be no action over which the circuit court has jurisdiction until a summons has been issued and served, except in the clas,s of cases provided for in section 4904 [Comp. L,. 1887], and in section 4858 [Id.].”
The summons shall .-be subscribed by the plaintiff or his attorney. Rev. Code 1919, § 2330. Section 5253, Rev. Code 1919, says:
“N.o person shall be permitted to practice as an attorney and counselor at law in any court of record within this state, either by using or subscribing his own name or the name of any other per
Another section of Statute (section 5259, Rev. Code 1919) provides:
“Any member of the bar of any state, actually engaged in any case or matter pending in any court in this state, may be permitted by such court to appear in and conduct such case or matter, while retaining his residence in such other state, without being subject to the foreging provisions of this article: Provided, he have associated with him a member of the bar of this state.”
Of course it needs no comment to show that this section is not a modification of section 3253 in so far as the institution of suit is concerned.
Manifestly, a summons signed only by a Minnesota attorney who has not been admitted to practice in the courts of this state is not signed “by the plaintiff or his attorney.” The so-called summons was a nullity, and of no more force than if signed by a mere layman. Francis v. Knerr, 149 Minn. 122, 182 N. W. 988.
Process which is radically defective is equivalent to no process, and will not support a judgment. 3,3 C. J. 1089. All voidable process may be made perfect by amendment, but void process is not amendable. 21 R. C. R. 1326. We are not unmindful of a decision cited by appellant in a case similar to, this, viz., Hammond-Chandler Lbr. Co. v. Industrial Com., 163 Wis. 596, 158 N. W. 292, but that opinion says:
“Our conclusion is that the rule that a void proceeding is not amendable applies only where there is no power to do the thing which was attempted h> foe done.”
Here there was no power on the part of the nonresident attorney to sign a summons in a suit in this state nor to' cause a summons to be issued. In this case the so-called summons was void, and therefore not the subject of amendment, and the trial court did not err in refusing to permit amendment.
The order appealed from is affirmed'.
In No. 6010, whidh is a like case, except as to the name of defendant, the same judgment will be entered.
