111 P. 647 | Utah | 1910
This is an appeal from a judgment of the district court of Salt Lake County dismissing plaintiff’s action. The bill of exceptions, as certified by the judge of the district court discloses the following facts:
The plaintiff, a corporation, on the 2d day of October, 1909, filed its complaint based upon its adverse claim against the application of the defendants for a patent for certain mining claims. On October 9th, seven days after filing the complaint, plaintiff also filed the summons and return showing service thereof on the defendants. Prom the face of the return it was made to appear that service was made on some of the defendants on the 5th and on the others on the 8th of September, 1909. On the 25th day of October, 1909, the defendant George W. Danley, both in his individual and
On the 6th day of November, 1909, both of the motions of the defendants and the application of plaintiff came on for hearing in open court. The record recites that defendants’ counsel called up the motion to dismiss. Plaintiff’s counsel then expressed a desire to have all the pending motions disposed of at the same time, to which defendants’ counsel seemingly consented. Plaintiffs counsel then said: “I notice an error in the return of summons. An error was made. Instead of October, it is September. I don’t know whether you claim anything, hut I want to amend the return. It is a clerical error. It was made on the 5th day of October, and returned on the 9th day of October. In making the affidavit of service — making the return — it said September, instead of October.” ' Defendants’ counsel simply said, “I want to dispose of this motion first,” and at once commenced his argument. After this, counsel for plaintiff
“■Within ten days after service of the summons, the complaint, if not previously filed, together with the summons and proof of service thereof, must he filed in the 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. Otherwise the action shall be dismissed on motion of any defendant.”
As we bave seen, tbe court, in effect, found that that section bad not been complied with in two particulars: (1)' In not having filed tbe original complaint “witbin ten days after service of tbe summons;” and (2) in not depositing with tbe clerk a copy of tbe complaint at any time. Tbe manner in wbieb tbe facts are stated botb in tbe findings of tbe court and in tbe motion of tbe defendants is somewhat peculiar. It will be observed that it is not found that tbe complaint nor the summons, nor tbe proof of service thereof, was not in truth and in fact filed “witbin ten days after service of tbe summons,” as provided by tbe section we bave quoted from, but in tbe motion of tbe defendants and in tbe findings of tbe court tbe statement is “that it affirmatively appears from tbe record in said case” that tbe things required by tbe statute were not done. No doubt it may appear from tbe face of a record that a certain thing was not done while as a matter of fact it may
One of tbe real questions in tbis case was not whether from tbe face of tbe record it appeared that tbe original complaint was filed within ten days after tbe service of tbe summons, but it was whether as a matter of fact such filing bad not been made within tbe time aforesaid. If tbe complaint, summons, and proof of service were in fact
Tbis court is committed to tbe rule of permitting amendments to officers’ returns liberally, to the end that such returns may show tbe actual truth. Bristol v. Brent, 36 Utah 108, 103 Pac. 1076. When counsel for plaintiff, therefore, suggested that tbe return of service did not speak tbe truth because tbe service of summons was made in October, instead of in September — that it was made after and not before tbe origi
Under our Code an action may be commenced in two ways. Section 2938, Comp. Laws, 1907, provides “ a civil action shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought or by the
The only remaining question, therefore, that requires solution is: Did the court err in dismissing the action because copies of the complaint were neither served on the defendants nor deposited with the clerk for them as provided by section 2946 which we have quoted? Counsel for the defendants contends that, when it was made to appear that the provisions of that section had not been complied with in respect to the service or the depositing of a copy of the complaint, the court was bound to dismiss the action upon the application of any one of the defendants. In other words, it is contended that the provisions of that section are mandatory, and hence the court has no discretion in the matter. The whole argument of counsel iá based upon the phrase used in the statute namely, “the action shall be dismissed.” In view of the spirit of our whole Code with respect to the right of making timely amendments and corrections to cure defects in proceedings in order to prevent the sacrifice or loss of substantial rights of parties to actions, we are of the opinion that the provisions of said section should be so construed and applied as to prevent, if possible, under the rules of construction, a failure of justice. By section 2489 (which
It will be noticed that it is only with respect to the copy <of the complaint that the language permits a construction in
But, once more assuming that we are-wrong in the construction we have placed on the language of that section by holding that an action is not required to be dismissed upon the sole ground that a copy has not been served nor deposited, there is yet, we think, another reason why the court, in view of the undisputed facts of this case, should not have dismissed the action. There are at least two other sections which have a bearing upon the question involved here, and which should always he considered by the court when it is aslced to abate or dismiss an action because of some defect in any pleading, process, or proceeding. Section 3329, among other things, expressly provides that if the time allowed by the Code in which to do an act relates to the pleadings, etc., the time within which an act is required to be done by any statute may, by the court or the judge, be extended “upon good cause shown.” If, therefore, there is a
While there are a few cases which hold that, where a statute requires that copies of pleadings be served or filed a failure to do so is fatal to the action, yet the very cases in which such a rule is laid down concede that the rule is unnecessarily harsh, and may result in injustice. See Hutchinson v. McClellan, 2 Wis. 18, and Elmore v. Garvey, 4 Wis. 152. There are no other cases cited by counsel or that we were able to find by independent research which are in point one way or the other. There are, however, some cases in which analogous questions arose and the right to supply omissions and correct mistakes by making proper amendments if the application therefor is timely made is discussed and applied. These cases amply illustrate the liberality with which the rule of permitting amendments is applied by the courts. Among numerous other cases that could be cited we refer to the following for the purpose of showing both the early and the later trend of the courts: Fox, etc., Ry. Co. v. Shoyer, 7 Wis. 365; Schieffelin v. Whipple, 10 Wis. 81; Railway v. Bailey, 70 Ohio St. 88-91, 70 N. E. 900.
Construing all of the several provisions of our statute to which we have referred together, and giving them all the force and effect which we think the legislature intended them to have, we are of the opinion that the legislature by the general statement that the action shall be dismissed did not thereby intend to prevent the court from permitting a plaintiff from supplying the omission to deposit or serve a copy of the complaint if he made a timely application upon good cause to supply such omission. To hold otherwise would in our judgment ignore the whole spirit which pervades our Code, and in many cases lead to injustice instead of furthering the same as is enjoined by section 2489.
But it is also contended that the ruling of the court should be upheld because the original complaint was not “subscribed by the party or his attorney,” as required by section 2983. Although the complaint in the record appears to be
Counsel, however, seeks to distinguish this case from those cited because in this case the plaintiff, who is the party, is a corporation, and hence the party did not make nor sign the verification. We cannot yield assent to such a contention. The vice-president in making and signing the‘verification acted for the corporation in a matter in which it could only act through him or not act at all. The corporation, although it could be a party, could not subscribe a complaint, and therefore the statute prescribes that this must be done by one of its officers or agents. The officer who makes the verification, therefore, takes the place of the corporation — the party to the action — and his act is its act. We think the signature to the complaint in this case comes squarely within the rule laid down in the cases to which we have referred, and hence the requirement of the statue that a complaint be subscribed by a party is sufficiently complied with. In any event, such a defect must be objected to timely and specifically or it will be deemed waived. If such
Upon the whole record we are constrained to hold that the court erred in dismissing the action. The judgment is therefore reversed and the cause remanded to the district