Haggerty v. Sherburne Merc. Co. , 120 Mont. 386 ( 1947 )

The question involved on this appeal is relatively simple. Subdivision 7 of section 9317, Revised Codes, in part reads:

"No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within one year, and served and return made within three years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said three years."

The action was commenced on August 11, 1932. Praecipe for the default of defendants was filed on December 26, 1935, and their default entered and judgment against them followed thereafter.

On January 12, 1946, defendant filed a motion to vacate the default and decree upon the ground that they were entered in violation of subdivision 7 of section 9317 in that at the time they were entered the court had no jurisdiction to do more than to dismiss the action.

When the default and decree were entered more than three years had elapsed after the commencement of the action and the only question before the court was, had summons been served and return made "within three years after the commencement of said action" under subdivision 7 of section 9317, or had defendant within the three-year period made an appearance?

Proof of service in the case consisted of the letters referred to in the majority opinion and some of these were attached to the original summons and filed on December 26, 1935, the same day that defendants' default was entered. This, it should be noted, was long after the three years mentioned in subdivision 7 of section 9317 had elapsed. No other proof of service was filed before that time.

The trial judge ruled that the only authority which the letters conferred upon Mr. Hurd was to file an answer without waiting for formal service of process; that the letters did not constitute an appearance; that summons was not served upon defendants and no return of service made within the three-year period named in section 9317.

My associates hold that the letters constituted an admission of service under subdivision 4 of section 9122. If that be accepted as true, it does not aid plaintiff. My associates realizing this go further and make the broad assertion that the admission of service under subdivision 4, section 9122, has the same legal effect as a return made by the sheriff when summons has been served by him.

In this I think my associates are palpably in error. "A `return' of a writ is a statement in writing made by a sheriff or other ministerial officer to the court, under his official oath, of what has been done touching the execution of the writ." Schmidt v. Schmidt, 108 Mont. 246, 89 P.2d 1020, 1022. (Emphasis mine.) This language was quoted with approval in State ex rel. Montgomery Ward Co. v. District Court, 115 Mont. 521,146 P.2d 1012. Obviously a sheriff does not make "return" of summons by executing the certificate attached thereto and placing the summons in his vest pocket. The "return" is not complete until the summons with the certificate (or affidavit if service be by one other than the sheriff) properly executed is filed in court. This must be done within three years after the commencement of the action. Likewise, the admission of service, which is but the equivalent of actual service, must also be filed within the three-year period. The admission of service constitutes proof of service and has the same effect as actual service but the proof must still be filed within the three-year period because the admission when filed with the summons constitutes the "return." It shows what has been done touching the execution of the writ. State ex rel. Montgomery Ward Co. v. District Court, supra. It is "the evidence by which the court is informed that the defendant has been given that indispensable notice to appear in court, without which the court is powerless to proceed." Bourgeious v. Santa Fe Trail Stages, 43 N.M. 453,95 P.2d 204, 206.

Did the letters constitute an appearance by defendants within the exception stated in subdivision 7 of section 9317, Revised Codes? Obviously they did not. An appearance means "the coming into court by either party to an action." 6 C.J.S., Appearances, sec. 1. It is "the first act of the defendant in court." 3 Am.Jur. 783. The letters in question here simply show that Mr. Hurd had authority to appear for the defendants but they do not show that he ever exercised that authority. They do not constitute an appearance within the meaning of section 9782, Revised Codes, but at most show a promise to appear at some indefinite time in the future. Also plaintiff conceded that defendant made no appearance by so reciting in her praecipe for default.

Where, as here, there was no appearance by defendant and no "return" made within three years, the court lost jurisdiction to do anything but dismiss the action. Siskiyou County Bank v. Hoyt,132 Cal. 81, 64 P. 118; Sauer v. Superior Court, 74 Cal. App. 580,241 P. 570; Cook v. Justice's Court of San Diego, 16 Cal. App. 2d 745,61 P.2d 357; People, by Department of Public Works, v. Southern P. Ry. Co., 17 Cal. App. 2d 257, 61 P.2d 1184; Gonsalves v. Bank of America Nat. Trust Savings Ass'n, Cal.App., 96 P.2d 391; Id., 16 Cal. 2d 169,105 P.2d 118. An actual service within the three-year period is of no avail unless return has also been made within that period. Modoc Land Live-Stock Co. v. Superior Court, 128 Cal. 255,60 P. 848; Bellingham Bay Lumber Co. v. Western Amusement Co.,35 Cal. App. 515, 170 P. 632; Pearson v. Superior Court, 122 Cal. App. 571,10 P.2d 489.

The judgment which was entered contrary to subdivision 7 of section 9317, being void for want of jurisdiction, was subject to attack at any time either directly or collaterally and it was not incumbent upon defendants to resort to section 9187, Revised Codes, or to appeal therefrom under section 9732.

My associates assert that defendants, if allowed to prevail here, will perpetrate a fraud upon plaintiff. Failure to comply with subdivision 7 of section 9317 was due to plaintiff's neglect. Any damage sustained by plaintiff as a result of sustaining the trial court's ruling will not be due to defendants' fraud but to plaintiff's neglect.

Furthermore, if plaintiff is actually the owner of the property she will not suffer greatly if she be compelled to try her case on the merits, which still can be done even though this action be dismissed as commanded by statute. We have no authority to disregard valid acts of the legislature. My associates, in my opinion, are nullifying the plain wording of our statute.

There are many other questions discussed in the majority opinion. Many of the assertions therein are of well settled principles of law not questioned here and I fail to see their applicability to the points at issue in this case. Likewise, many cases are cited, most of which proclaim some elementary principle of law not questioned here. There is no case supporting the essential conclusion that admission of service not exhibited to the court constitutes a return of the summons at the time the admission was made.

The case of Federal Land Bank of Berkeley v. Brinton, 106 Utah 149,146 P.2d 200, 202, is not applicable here because there was not involved in that case any statute similar to our subdivision 7 of section 9317. In that case the court after referring to the statute, said of it, "nor does there appear a requirement for the filing of any proof of service." Therein lies the difference between that case and this one. Here the requirement of return within three years means the filing of proof of service, or the filing of an admission of service if that be relied on.

What has been said regarding the Berkeley Case applies also to the case of Bourgeious v. Santa Fe Trail Stages, supra, so far as it holds that failure to file a return does not affect the jurisdiction of the court. In that case no statute such as subdivision 7 of section 9317 was referred to.

I concede that where judgment is entered prior to the three-year period, defective proof of service may be amended and thus the return amended nunc pro tunc, and to this extent it is fact of service rather than proof thereof that gives the court jurisdiction. That was so held in Jones v. Gunn, 149 Cal. 687,87 P. 577, and we have announced the same rule in a case where the judgment was entered within the three-year period. State ex rel. Duckworth v. District Court, 107 Mont. 97, 80 P.2d 367.

But in this state, by virtue of the statute, the court loses jurisdiction of a case except to dismiss it after the three-year period unless return or appearance is made within that time. The statute was designed to hasten prosecution by imposing the penalty of dismissal for want of prosecution.

My associates point out the fundamental principle that a general appearance waives jurisdictional questions. There has been no general appearance in this case. Certainly my associates do not mean to infer that when a person moves to set aside a judgment void for want of jurisdiction when entered, he thereby cures the jurisdictional point retroactively.

I think the trial court was correct in its conclusion and that the order should be affirmed.

Rehearing denied December 2, 1947.