Bowen v. Harper , 6 Idaho 654 ( 1899 )

QUARLES, J.

— The plaintiff commenced this action in the court below to foreclose a mortgage. Two of the defendants were served with summons in this state; one John E. Harper, the principal defendant, being absent. Order for publication of summons against said absent defendant, Harper, was duly made February 10, 1898. In lieu of publication of the summons, the plaintiff caused the summons and copy of complaint to be served upon said defendant, Harper, personally on the twenty-first day of February, 1898, in the city of Chicago, in the state of Illinois. The default of said defendant, Harper, was entered by the clerk in the action on April 19, 1898. April 25, 1898, said defendant, H arper, filed a motion to set said default aside, upon the ground that the same was entered before the time of said defendant to answer had expired, and thereafter filed a demurrer to the complaint. On May 5, 1898, said motion came on to be heard, and was denied; and on the same day, on evidence heard on behalf of the plaintiff, the court entered its decree of foreclosure in favor of the plaintiff

The principal question before us is, Was the default of the absent defendant prematurely entered? If so, the court below should have ¿'ranted said defendant’s motion to set the default aside, and its failure so to do was reversible error. The solution of this question depends upon the construction to be given to section 4146 of the Revised Statutes, which section is as follows: “The order must direct the publication to be made in a newspaper to be designated as the most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; but publication against a defendant residing out of the territory or absent therefrom must not be less than one month. In case of publication, where the residence of a nonresident or absent defendant is known, the court or judge must direct a copy of the summons and complaint to be forthwith deposited in the postoffice, directed to the person to be served at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the territory is equivalent to publication and deposit in the postoffice; and in either case the service of the summons is complete at the expiration of the time prescribed by the order for publication.” A careful examination of this statute, convinces us that the legislature intended that the service, when made personally out of the state, should not be regarded as complete until the expiration of the time prescribed for the publication in the order therefor. The order for publication in the case at bar prescribed one month as the time during which the summons should be published in the newspaper designated in the order. The month would necessarily commence with the first publication, if the service had been made by publication. The first publication in such case would be the date, and the only date, from which to compute the one month. It would not do to commence to compute it from the date of the order, for the statute says that the service becomes complete with the expiration of the time prescribed by the order. The qualifying words, “in either case,” in the last clause of the statute under consideration relate to both of the modes of serving the summons upon the absent defendant provided for in said statute — i. e., in case of publication of the summons and in case of personal service out of the state. In the first case, the service becomes complete at the expiration of the time prescribed in the order for publication, computing from the date of the first publication; and in the last case it becomes complete at the expiration of such time, computing from the date of making the personal service out of the state. In the case at bar the personal service was made out of the state on the twenty-first day of February. The service, under the statute, was not complete until the expiration of one month from February 21st. In other words, it required the lapse of time— one month — to complete the service. The defendant had forty days from the time the service became complete in which to answer. The service did not become complete prior to the commencement of the twenty-first day of March. From March 21st to April 19th is less than forty days. Hence, we are bound to hold that the default of the defendant, Harper, was prematurely entered and void, and that the same should have been set aside, and said defendant heard upon the demurrer. See authorities construing the same statutory provision as follows: Grewell v. Henderson, 5 Cal. 465; Trust Co. v. Bulmer 49 N. Y. 84; Market Nat. Bank of New York v. Pacific Nat. Bank of New York, 89 N. Y. 397. The judgment appealed from is reversed, and the cause remanded to the district court for further proceedings consistent with this opinion. Costs of appeal awarded to the appellant.

Huston, C. J., and Sullivan, J., concur.