175 P. 601 | Utah | 1918
P. William Reese, plaintiff here, makes application to this court for a writ of prohibition against the judges of the district court of Salt Lake county, prohibiting that court from proceeding further in an action therein pending wherein W.
On the 2d day of Jnly, 1918, complaint was filed in the district court by the plaintiffs, Maddison et al., against Reese et al., bnt no summons or proof of service of summons was filed with the clerk at that time or prior thereto. It appears from the application for the writ, and the facts stated therein are admitted, that on the 22d day of June, 1918, summons was served in said action upon the plaintiff, Reese, in Salt Lake county, Utah, by a private citizen, Thomas P. Fowler; but no return was made thereon, and neither the summons nor the return was filed with the clerk of the court within 10 days thereafter, and the same was not filed on the 2d day of July, the date of filing of the complaint. Thereafter, on the 12th day of July, 1918, the plaintiff here, by counsel, made a special appearance in the action, objected to'the jurisdiction of the court, and moved that the court dismiss the action, on the ground that it was without jurisdiction over the said plaintiff. On the day following (the 18th of July) the plaintiff, Maddison, filed with the clerk of the court and served notice upon the attorney for Reese of his intention to ask the court for an order permitting him to file the summons and return, and supported the same with an affidavit. That motion came on for hearing on the 8th day of August, 1918, and the plaintiff was permitted to file summons and proof of service of summons, and the court denied said motion to dismiss the action, and in effect held that that court had jurisdiction and would proceed to determine the issues in the ease. Thereupon plaintiff applied to this court for a writ of prohibition.
A determination of the question presented on this application requires the construction of section 2946, Comp. Laws Utah 1907. That section, so far as material here, is as follows:
“Within ten days after service of the summons, the1 complaint, if not previously filed, together with the summons and proof of service thereof, must be filed in the*522 office of the clerk of the court in which the action is brought. At the same time, one copy of the complaint shall be deposited with the clerk for the defendants in each county in which the summons shall have been served, unless a copy thereof was served with the summons in each of such counties. # * *”
There are two methods provided by section 2988 of the Code of Civil Procedure for beginning actions in this jurisdiction: (1) By filing the complaint with the clerk of the court in which the action is brought; and (2) by the service of summons. The service of summons on the plaintiff on the 22d day of June was the beginning of an action, and if the provisions of section 2946 have been complied with the court acquired jurisdiction of the defendants in that action. It will be observed by a reading of that section that to give the court jurisdiction of the parties the plaintiff must, within 10 days after the service of summons, file the complaint, if not previously filed, together with the summons and proof of service thereof, with the clerk of the court in which the action is brought. The Legislature seems to have required the filing of the complaint and the summons and proof of service thereof as a prerequisite to giving the court jurisdiction of the parties.
The language of section 2946 is unambiguous, and it is not necessary to resort to anything but the ordinary rules of construction to determine just what was the intent of the law-making body. That body having the unquestioned power and right to determine the procedure by which
The defendants contend that the above construction is in conflict with a former ruling of this court in Lime & Stone Co. v. Danley et al., 38 Utah, 218, 111 Pac. 647. An examination of that case, however, will readily show that the question decided there is not involved here. In that case it was held that the failure of the plaintiff to file copies of the complaint for the defendant with the clerk of the court, at the time of filing the complaint, the summons, and the proof of service, did not deprive the court of jurisdiction of the parties, and the plaintiff should be permitted to file such copies upon reasonable showing made to the court within reasonable time. The section in question does not undertake, as I construe it, to make the deposit of a copy of the complaint a prerequisite to giving the court jurisdiction; but it clearly does make the filing of the complaint with the summons and proof of service thereof, within the time specified, necessary in order to give the court jurisdiction. The filing of tbe complaint, summons, and proof of service is for the benefit of the court; that is, to advise it of the claim or contention of the plaintiff, also as to whether the proper notice has been served upon the defendant to bring the defendant into court. But the filing of the copy of the complaint is not for the court’s information or benefit, but for the information and benefit of the defendant.
The decision in the case above cited is not controlling, nor in conflict with the conclusions here reached. Under the plain requirements of the statute, there seems to be no escape from the conclusion that the plaintiff herein is entitled to the relief sought.
It is therefore ordered that the peremptory writ prayed for herein issue. Costs of the proceeding to be taxed against plaintiff'
