40 P. 511 | Or. | 1895
Opinion by
Under a statute in Minnesota (Gen. Stat. 1878, Chap. LXVI, § 69, now Gen. Stat. 1894, § 5209,) providing that “From the time of the service of a summons in a civil action the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings, ” it has been held that where the defendant dies after the publication of the summons in an action against him had been commenced, but before it had been published the full six weeks required by statute, the court had no jurisdiction to make an order of substitution continuing the action against his executrix: Auerbach v. Maynard, 26 Minn. 421 (4 N. W. 816). In that case Berry, J., says: “Then, under section 69, (section 5209, Gen. Stat. 1894,) from the time when the service is thus complete, ‘the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings.’ If the party upon whom the service is being made dies before it is complete,— that is, before the required publications have been made, — the service cannot be completed, there being no person in being upon whom to make it; and whatever has been done, short of complete service, is of no avail, and the court acquires no jurisdiction through it.” Thus it appears that the court is without power or authority to take any action looking to the rendition of a personal judgment merely without first obtaining jurisdiction through the service of a summons upon the defendant. Aliter from the time of the service of summons the court has control of all subsequent proceedings. The statute of Minnesota stops short of the provisions of section 62 under consideration, but the judicial interpretation thereof in Auerbach v. Maynard, 26 Minn. 421, (4
If A. H. Johnson had lived, and the court had simply made an order after the allowance of the writ that he have ten days after service of a copy of the order and complaint to plead thereto, and service had been made as required by the order, it must be conceded that the proceeding would not have been equivalent to the issuance and service of a proper summons upon him. A noncompliance with the order would not have put him in default. The order of the court in the present case, including its service with a copy of the complaint, could scarcely have a different or more vital effect, and the fact that she was served with a copy of the summons in which her name was nowhere mentioned could not add to the force of the proceeding. If Johnson had been served with the summons, and substitution made thereafter, the case would be different, as the representative, having due notice of the substitution, would take the case up at the point where and in the condition in which the predecessor left it. Judge Rumsey, in his work entitled Rumsey’s Practice, (Yol. I, page 666,) says: “Where the action is revived, the issue and proceedings are taken up at the point where the death of the party as to whom the change is made left them; the new or substituted party takes the place of the prior one, and the case is revived and pro
Reversed.