Nevada Cornell S.M. v. Hankins , 51 Nev. 420 ( 1929 )

I dissent from the order of reversal.

It is a generally recognized canon of construction that, "if a statute is plain, certain and unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare reading suffices; then interpretation is needless." The statute is of this character. It reads in part: "Summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by any citizen of the United States over twenty-one years of age. * * *" Section 5022.

There is nothing obscure in its phrasing. This broad authorization certainly includes an attorney for plaintiff, and in no other part of the statute, or elsewhere in our law, is such attorney prohibited from serving a summons, either expressly or by implication. There is then no room for interpretation.

The prevailing opinion refers to two cases holding that an attorney for a plaintiff cannot serve a summons, but these cases are of no value as authorities under a statute like ours.

In Rutherford v. Moody, 59 Ark. 328, 27 S.W. 230, the question was determined with reference to common-law principles which required such service to be made by a person not interested in the litigation. Moreover, the statute in Arkansas, which at that time seems to have been applicable, was dissimilar to ours, in that it in express terms prohibited a party from serving a summons.

In Nelson v. Chittenden, 53 Colo. 30, 123 P. 656, Ann. Cas. 1914A, 1198, also cited, it was held that service of summons by the plaintiff attorney was void. But in Colorado the several sections of the code construed are largely different from our statute. The court in the Colorado case was of the opinion that the legitimate inference derivable from these sections was that the legislature never intended that an attorney for a plaintiff should serve a summons. The opinion was largely predicated upon the language of a section which authorized the attorney to issue a summons, and also provided that when the summons is served by any other person than the sheriff or his deputy, it shall be returned to the clerk or attorney who issued the same, with the affidavit of such person of its service. The provision permitting a return to be made to the attorney was deemed strongly to indicate an intent to prohibit the attorney from serving the summons, for the court reasoned it could hardly have been intended that one could serve a summons and make the return to himself.

The supreme court of Minnesota, in First National Bank of Whitewater v. Estenson, 68 Minn. 28, 70 N.W. 775, held that the statute involved in that case did not prohibit an attorney for a plaintiff from serving a summons. The statute construed was practically the same as ours, except that a party to an action was prohibited from serving a summons. The court pointed out that the same reasons of public policy which moved the legislature to deny such authority to a party to an action do not apply to the same extent to an attorney, who is an officer of the court, and answerable to it for fraud or misconduct in the premises. But, be that as it may, I think whatever may be urged as to the impolicy of an attorney for a plaintiff serving a summons is a matter for legislative consideration.