153 P. 890 | Wyo. | 1915
Lead Opinion
On the petition of plaintiffs in error, a rehearing was granted in this cause upon the motions of the Wyoming Development Company, one of the defendants in error, to quash the service of the summons and dismiss'the proceedings in error, and the two motions have again been submitted. It was held by the former opinion that the motions should be sustained and the proceedings in error dismissed as to said defendant in error. (147 Pac. 169.) Upon reconsideration we have reached a different conclusion. The motions raise an important question of practice affecting the appellate jurisdiction of the court, under the statute limiting the time for commencing proceedings in error. Both motions are based on the same ground, viz.: that the service of the summons upon the defendant in error was ineffective to give the court jurisdiction, because not made before or within sixty days after the expiration of the time allowed for commencing the proceedings in error or within sixty days after the date of the summons. The motion to dismiss also states that the summons had not been served within the time or times -aforesaid upon any co-defendant in error who is a joint contractor or otherwise united in interest with said defendant in error, and that jurisdiction over the latter had not been otherwise acquired.
The cause was heard and determined in the district court on appeal from an order of the State Board of Control establishing the several priorities of right to the use of the waters of the Big Laramie River and its tributaries. Several of the parties interested in that adjudication appealed the matter to the district court, as permitted by Section 779, Compiled Statutes, 1910, which appeals were consolidated by consent of all the parties and disposed of by a judgment rendered on December 27, 1912. Thereafter, on January 6, 1913, an order was entered overruling several motions for new trial that had been filed, including the motions of the plaintiffs in error herein. Six of the parties to the judgment filed their petitions in error in this court on January 3, 1914, together with a precipe for summons
The statute provides, with certain exceptions not here material, that no proceeding to reverse, vacate or modify a judgment or final order shall be commenced unless within one year after the rendition of the judgment, or the making of the final order complained of. (Comp. Stats. 1910, Sec. 5122.) And it is not disputed that in this case the time for commencing the proceeding in error commenced to run at the date of the order overruling the motions for new trial. (See Conradt v. Lepper, 13 Wyo. 99, 78 Pac. 1; 3 Ann. Cas. 627; Toltec Live Stock Co. v. Gillespie, 20 Wyo. 314, 123 Pac. 413; Lobell v. Stock Oil Co., 19 Wyo. 170, 115 Pac. 69.) The statute does not, however, prescribe what shall constitute the commencement of such a proceeding within the meaning of 'the provision limiting the time therefor. It does provide that the proceeding shall be by petition in error, and that upon the filing thereof a summons shall issue and be served, or publication made, as in the commencement of an action, unless the issue and service of summons be waived, in writing, by the defendant in error or his attorney'-. (Comp. Stat. 1910, Secs. 5111, 5112.) And it requires that the summons shall be issued by the clerk of the court in which the petition in error is filed, upon the written precipe of the plaintiff in error, or his attorney (Sec. 5112) ; and that “if issued in vacation, it shall be returnable on or before the first day of the term of the court, and if issued in term time, it shall be returnable on a day therein named.” (Sec. 5111.)
Considering these provisions and the failure of the statute to specially designate what shall be necessary or sufficient to commence a proceeding in error within the meaning of the provision limiting the time for its commence
“Sec. 4305. An action shall be deemed commenced, within the meaning of this chapter, as to each defendant, at the date of the summoñs which is served on him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him; and when service by publication is proper, the action shall be deemed commenced at the date of the first publication, if the publication be regularly made.”
“Sec. 4306. An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this chapter, when the party diligently endeavors to procure a service; but such attempt must be followed by service within sixty days.”
Applying these provisions, we have held that a proceeding in error is not commenced by the mere filing of a petL tion in error without causing a summons in error to be issued, where the issuance and service of summons have not been waived. (Foree v. State, 14 Wyo. 296, 83 Pac. 596; Lobell v. Stock Oil Co., supra; Federal Oil and Development Co. v. Petroleum &c., 19 Wyo. 254, 115 Pac. 1135.)
In a previous Ohio case (Bowen v. Bowen, 36 O. St. 312) there were expressions in the opinion and especially in the syllabus from which, if the facts were not considered, it might be inferred that the court intended to hold that the issuance of the summons within the time allowed for bringing the proceeding was not alone sufficient, but that a service of the summons within such time was also essential to jurisdiction, but in that case, although the petition had been filed in time, no summons had been either issued or served, nor the appearance of the defendants in error otherwise effected within the period of limitation, and, referring to the case, it was said in the opinion in McDon
Counsel for defendant in error does not contend that to give the court jurisdiction summons must be served as well as issued within the time allowed for commencing the proceeding, but it is contended that the issuance of the summons must be followed by service within sixty days, if in
It was not intended by Section 4306 to restrict or in any manner affect the operation or construction of Section 4305. Its only object is to save, under the stated conditions, the rights of a party not protected by Section 4305, because not having obtained service or a service sufficient to give the court jurisdiction. It was said by the Supreme Court of Ohio, referring to the corresponding section in the code of that state, it “would seem to have for its purpose only the helping out of a party who had failed in his first effort to procure service.” (Railway Co. v. Bemis, 64 O. St. 26, 36, 59 N. E. 745, 748.) It relates only to the matter of service. (McLarren v. Myers, 87 O. St. 88, 100 N. E. 121.) And it was clearly intended to extend the time for service, where the party has failed to bring his case within the operation of the preceding section, and not to limit the time for serving an original summons. It refers to an “attempt” to commence an action, in other words, an unsuccessful effort to commence, and can have no application to an action which has been commenced through a good and sufficient service of a summons issued in proper time. Where a summons in proper form is issued within the time limited for commencing the action or proceeding, and it is served in the mann'er and within the time prescribed by law for serving a summons, then Section 4305 applies, and there is no room for the application of Section 4306. The same thought was expressed by this court in the case of
That the purpose of Section 4306 was to save the rights of a party by extending the time for service, and not to restrict the operation or effect of Section 4305 is also shown by reference to the provisions of the statute prescribing generally when a summons issued in a civil action shall be made returnable. When the code containing these several provisions was adopted, it was provided that when the time for bringing parties into court is not otherwise prescribed by statute, the summons shall be made returnable on the second Monday after its date, except that when issued to any other county it may be made returnable at the option of the party having it issued on the third or
Now the return day of a summons in a proceeding in error is specially provided for. If issued in vacation it must be returnable on the first day of the term of the court; and if issued in term time, it is to be made returnable on a day
But by the construction here contended for by counsel for defendant in error Section 4306 would be made to qualify Section 4303, so as to cause it to read in effect that an action shall be deemed to be commenced at the date of the summons served, etc., provided that the summons shall be served within sixty days; and if the requirement as to service within sixty days should be held to modify Section 4305, then, by the same reasoning, the other provision of
But counsel cites and strongly relies upon the case of Bechthold v. Fisher, 12 O. C. C. Rep. 559. In that case, which came to the circuit court on error, the limitation period expired September 27, 1896, and the summons was made returnable October 20, 1896; that being the first day of the next term. It was served on September 28, 1896. A motion to quash the service was sustained on the ground that it was not made within sixty days after the date of the summons; the court holding that the section, which requires a service within sixty days to render an attempt to commence equivalent to the commencement of an action, applied. The case sustains counsel’s contention, and the opinion goes even further than counsel does, for it seems to hold that even if the service had occurred within the limitation period, but more than sixty days after the date of the summons, the proceeding would not be commenced in time. At least we do not understand counsel to so contend, and clearly it is not the law, where the service is so made and within the return day properly stated in the summons. In the case cited, the court expressly held that the section aforesaid relating to an attempt to commence an action fixed the time within which service can properly be made' to allow, under
The effect of the case as authority is much lessened by the failure of the opinion to mention the case of McDonald v. Ketchum, supra, decided about a year earlier by the Supreme Court, an oversight explainable only on the theory that, the court was not aware of that decision, for it is so clearly in point on the question as to require that the case then being determined be either distinguished, if possible, or decided differently; the Supreme Court having unequivocally held in the case aforesaid that a proceeding in error is to be deemed commenced at the date of a summons issued within the limitation period and served any time before the return day. There are other indications in the opinion of a lack of careful and thorough consideration. It is stated that the question was not a new one, but had been noticed by the Supreme Court a number of times, notably in the case of Bowen v. Bowen, 36 O. St. 312. Yet, after a most painstaking investigation, we have failed to find any case decided by the Supreme Court, which involved the same ouestion, or like facts, and counsel have cited none, except the above mentioned case of McDonald v. Ketchum. There had been no summons issued or served in the Bowen case, as pointed out in the opinion in McDonald v. Ketchum.
Aeain, it is declared in the opinion in the Bechthold-Fisher case that the code provisions relating to the com
When the several code provisions in question were adopted here, only one term of the Supreme Court annually was provided for; that situation continuing without change until the taking effect in 1890 of the State Constitution requiring the holding of two regular terms each year. And the records of the court disclose that it was not unusual, under the territorial form of government, for the vacation period to cover several- months — in occasional instances, six or
Our attention is called to the Oklahoma cases referring to like statutory provisions, some of them stating in effect that service must be made within sixty days, where it is not made before the expiration of the time allowed for commencing the proceeding. But in none of the cases was the court considering a condition like that in the case at bar. On the contrary, it appeared either that no summons had issued in proper time, or had not been served, or the court’s statement as to the necessity of service within sixty days had reference to an alias summons, and not the service within the return day of an original summons issued in proper time. In Wedd v. Gates, 15 Okla. 602, 82 Pac. 808, one of the defendants in error was not served with summons, and he moved to dismiss the appeal, because not taken in time, as to him. The decision in this case is referred to and its effect limited in the later case of Bank v. Clingan, 26 Okla. 150, 109 Pac. 69. In School Dist. v. Fisher, 23 Okla. 9, 99 Pac. 646, it appeared that summons in error had been issued in due time, and served during the same month, but the service was quashed on motion, for some defect not stated; an alias summons was thereupon issued and served, but it was issued after the period for bringing the error proceeding had expired. The case clearly presented a situation where there had been an unsuccessful attempt to commence the proceeding, and because the service had not
In that state, however, in line with and following the Ohio and Kansas decisions on the subject, it is held that where the proceeding is commenced by the filing of the petition and other necessary papers and the issuance of summons within the time limited, which summons is properly served on one of the necessary parties, it is not required that the other party or parties who are united in interest with the one so served shall be served with summons within sixty days; thereby denying the application to such a case of the provision with reference to an attempt to commence an action and requiring a diligent endeavor to procure service and the making of service within sixty days. (First State Bank v. Clingen, 26 Okla. 150, 109 Pac. 69;
“A line of cases, of which the above case is perhaps the leading one, is relied on by defendants in error to sustain their contention that, more than 60 days having elapsed after the time allowed for filing the appeal, the proceeding has not been commenced as to Davis, and is therefore now barred. But the case of First State Bank v. Clingan, 26 Okla. 150, 109 Pac. 69, is cited by plaintiff in error as destructive of the contention mentioned. The Clingan case reasserts the rule that the general statute as to commencement of actions, supra, is applicable in this court by analogy, and refused to dismiss that case on May 10, 1910, when it had been filed in this court November 29, 1909, the last day allowed by law for filing, although one of the necessary parties had not been brought into this court at the time the opinion was written. Therefore, under the facts in the Clingan case, it is obvious that the sixty-day clause of the statute was not considered applicable. Were we to stop with what has been said, it would appear that the Fisher*472 case and the Clingan case are in conflict. Not so. They are both right under their facts and the law applicable. In the Fisher case, it will be remembered, there was no service on any one. One had been attempted, but it was void. There being then no service on any defendant, the second clause of the statute involved was resorted to. That clause deals with a situation where no service has been had within the time allowed for bringing the appeal, but where an attempt in good faith has been promptly made. * * * * To sum up the matter, the Clingan case was one where all that was necessary to be done had been done to commence the proceedings, under the terms of the statute. * * * * In the Fisher case, supra, under the second clause of the statute, what was done was merely an attempt to commence the proceedings, and in such cases the attempt must be completed in the manner pointed out within sixty days or not at all. * * * * The distinction we have attempted to show here between the effect of the two clauses of our statute has not been clearly pointed out in any of the decisions, but it has been applied; for in the Botsford (Kansas) case the court refused to dismiss, although a necessary party had not been brought into court when the opinion was written, which was five months after the time allowed for filing in the Supreme Court had expired. The Ohio courts also applied the distinction without specially discussing it.”
Whether or not the court thought it necessary that the original summons be served as well as issued within the limitation period to avoid the application of the clause re-ouiring service in sixty days is not clear from the opinion. But it is clear that it was intended to hold such clause to be inapplicable when, under the preceding clause, the service has been sufficient to commence the proceeding in proper time. Thus the case makes the distinction between the two provisions which we have here endeavored to show. The distinction is recognized in Ohio. (See Ross v. Willet, 54 O. St. 150, 42 N. E. 697; B. & O. R. Co. v. Ambach. O. St. 553, 45 N. E. 719; McLarren v. Myers, 87 O. St. 88, 100 N. E. 121; Snider’s Ex’rs. v. Young, 72
Counsel also calls attention to the following statement in the opinion in the Kansas case of Thompson v. Wheeler & Wilson Mfg. Co., supra: “Where a bona fide attempt to commence a proceeding in error is made by filing a petition in error and case made, as was done in the present case, and having summons issued thereon, such act should be deemed equivalent to the commencement of such proceeding in error: provided, of course, that the plaintiff in error should faithfully, properly and diligently follow up his at
We hold, therefore, that the provision for service within sixty days is not applicable upon the facts in this case, if the summons was otherwise served in proper time; and unless the summons was illegally made returnable at the time therein stated, it was served in proper time, for the service occurred before the return day; and the sufficiency of the service in other respects is not challenged.
In disposing of the case at the former hearing we held that a summons in error issued in term time, as this summons was, could not legally be made returnable beyond the possible life of the term, and that the service after the legal life of the writ was void. That view of the matter we are now convinced was erroneous. We were misled by a statement in Nash’s Pleading and Practice, quoted in the former opinion, into construing the words of the statute requiring that the summons, if issued in term time, “shall be returnable on a day therein named,” to mean that a summons so issued shall be returnable on a named day in the term. And
We have been unable to find anything in the cases in Ohio, or the other states having like code provisions, construing or applying the statute as to the return day of a summons in error to sustain the view stated in the former opinion. The only judicial expression with reference to the matter is found in a case decided by one of the circuit courts of Ohio. In Morris v. B. & O. R. Co., 18 O. C. C. Rep. 167, decided in 1911, it appeared that a summons in error was issued in term time and made returnable “on or before the first day of the next term of said circuit court,” without specifying the date. The summons was held not to be fatally defective for that reason. It was suggested by counsel that the provision of the statute that a summons issued in term time shall be made returnable on a day certain, means a day within the term. But the court said that the position was not tenable, “because
Nor is there any indication in the cases of a practice in either of the states aforesaid requiring that the return day o f a summons issued in term time shall not run beyond the possible close of the term or the first day of the next term; and the fact that the question does not seem to have been presented in any reported case, except the one above cited, strongly tends to show that no such practice, or construction of the statute requiring it, exists in those states. The practice here has been contrary to such a construction ; the rule followed in the clerk’s office, heretofore without objection, has been to make a summons issued in term time returnable on a specified day a certain length of time after its date, deemed sufficient to allow service to be made, irrespective of the time when the term must close. We were sufficiently doubtful of our former position on the question to grant the rehearing, and on further reflection are satisfied that the statute is not subject to the interpretation that it confines the return day of a summons issued in term time to a day within the term, or a day before the beginning of .the next term. It is now clear to us that the meaning of the statute is that such a summons shall he made returnable on a day named in the summons— the word “therein” referring to the writ and not to the term.
We have not considered the fact that the summons was' served on one of the defendants in error on January 6, 1914, for it has not been suggested that the one so served is, within the meaning of Section 4305, united in interest with the objecting defendant in error.
Dissenting Opinion
(dissenting).
There is much said in the opinion of the majority with which I find no fault; but must differ from them in the conclusion arrived at. In my opinion there is nothing in Section 5111, Comp. Stat. 1910, authorizing the return day of a summons in error to be later than the first day of the next term, whether it be issued when court is in session or after it has adjourned for the term. I am further of the opinion that service must be- procured within sixty days after the expiration of the year allowed by the statute for commencing proceedings in error in order to give the court jurisdiction; and that service within the life of the writ is not sufficient in all cases. Section 5111 provides “if issued in vacation, it shall be returnable on or before the first day of the term of court, and if issued in term time, it shall be returnable on a day therein named; and if the last publication, or service of summons, be made ten days before the end of the term, the case shall stand for hearing at that term.” There must have been some reason in the minds of the lawmakers for this difference in the return day. Bearing in mind that the return of the officer indorsed on the writ is but the evidence by which the fact of service and the time thereof is proven, and that a plaintiff is not entitled to have the case tried until he has proven that service has been had on the defendant, it is evident that when a petition in error is filed and summons issued after the court has adjourned for the term, the case cannot 'be heard before the first day of the next term, and that is as soon as plaintiff is required to produce his proof that the defendant has been duly and timely served. But if the petition is filed and summons issued while the court is in session it may well be that service may be procured in
This court holds two regular terms each year, one commencing on the first Monday in April, and the other on the first Monday in October. In the case at bar, the last day for filing the petition in error -and causing summons to issue was January 6, 1914. The petition in error was filed January 3, 1914, the summons issued on that day and made returnable August 1, 1914, and was served July 22, 1914. We take notice that the October, 1913, term adjourned for the term March 23, 1914, and that the April term commenced April 6, 1914. Suppose in another case the last day for filing a petition in error and causing summons to issue was April 5, 1914, and it was filed April 2, 1914, and summons issued that day, it being in vacation, the return day could not be later than April 6. If the plaintiff diligently endeavored to secure service by that date, but failed, he could on April 6 (the court then being in session) have an alias summons issued and made returnable August 1, 1914, as in this case; and if served July 22, 1914, the majority opinion concedes — and I think rightly — that service was not in time to give the court jurisdiction because not served within sixty days from the date of the original summons, although within the life of the writ; while they hold that the service in this case of a summons issued three months earlier is good. I am unable to see any substantial reason for making such a distinction. If a summons because issued in term time may be made returnable and served four months after the commencement of the next term, why not fourteen or twenty-four months thereafter?
The case of McDonald v. Ketchum, 53 O. St. 519, 42 N. E. 322, is much relied upon for support by the majority; but the question here was not and could not be involved in that case for the reason that service of the summons was in fact had within sixty days from the date it
It is said that the clerk may exercise a reasonable discretion in fixing the return day when issuing summons in term time; and “Unless the period allowed to intervene between the date of the summons and the return day named therein is so clearly unreasonable, under the circumstances of a particular case, as to require or justify the quashing of the writ on that ground, service may properly be made any time before return day.” Biut suppose the court finds the time unreasonable and quashes the writ on that ground, what is to become of the case, and what becomes of the holding that service is sufficient if made within the life of the writ? As to the practice in this court, I am informed by the clerk, who has been clerk for more than twelve years last past, that it has been the general practice, until recently, to make the summons returnable thirty days after its date unless that dajr would fall on Sunday or a holiday, when it was usually made a day later. When the court is in doubt as to the correct construction of a statute, it should give to it such a construction, if reasonable, as will render its operation uniform in all cases of the same kind and class, and will afford to litigants equal protection of the law. With due respect for the opinions of my brethren, I am constrained to dissent.
