King v. Menz

• Decision Date: 05 March 1956
• Docket Number: No. 7522,7522
• Citation: 75 N.W.2d 516
• Parties: Grace KING, Plaintiff and Respondent, v. Freddy MENZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 516

75 N.W.2d 516

Grace KING, Plaintiff and Respondent, v. Freddy MENZ, Defendant and Appellant.

No. 7522.

Supreme Court of North Dakota.

March 5, 1956.

Rehearing Denied March 29, 1956.

Syllabus by the Court.

1. When a state officer takes an appeal from a district court judgment in a purely official capacity no undertaking for costs needs to be given. Section 28-2719, NDRC 1943.

2. Whenever a question of the jurisdiction of the court, in a matter brought before it, appears the court has the power and duty to promptly make all investigation necessary to determine that question. If the court should not have jurisdiction all further proceedings would be in vain.

3. The general presumption prevails that the revisers of the code did not intend to change the law as it formerly existed. Unless the changes are of such nature as to manifest clearly and unmistakably a legislative intent to change the former law, a statute as revised must be construed as a continuation of the then existing statute.

4. When there is no service of the summons and complaint in an action for damages upon the defendant, a nonresident driving an automobile over the highways of this state, either personal or by registered mail as provided by law, and he makes no personal appearance, then the court has obtained no jurisdiction over him.

5. An attorney has no power to admit service of a summons and complaint and thereby confer jurisdiction on the defendant unless he has special authority from such defendant.

6. Before the attorney general has any authority to appear in a suit brought to obtain a judgment collectible out of the unsatisfied judgment fund as provided in Section 39-1704, 1953 Supp. NDRC 1943, jurisdiction must be obtained over the defendant in such case. That section gives the attorney general no authority to appear for the defendant, except to protect the fund in his name after service has been obtained on him.

7. To have jurisdiction of a matter brought before the court, the court must have the power to inquire into the facts, apply the law and to determine and pronounce judgment in the matter at issue.

Leslie R. Burgum, Atty. Gen., and T. H. H. Thoresen, Asst. Atty. Gen., for appellant and for the N. D. Unsatisfied Judgment Fund.

J. K. Murray, Bismarck, for respondent.

GRIMSON, Judge.

On August 27, 1954, an action was started by Miss Grace King against one, Freddy Menz. The complaint alleges that the defendant was a resident of Poplar, Montana; that he had never been a resident of North Dakota; that he was using the highways of North Dakota for the operation of an automobile; that while so driving and operating his automobile on May 29, 1954, in Sioux County, North Dakota, on Highway No. 21, the defendant, while under the influence of intoxicating liquor, operated his automobile in a grossly negligent manner; that he drove off the highway into a ditch causing said automobile to roll over four or five times, inflicting serious injuries upon the plaintiff who was riding as a guest in his automobile. Plaintiff asks damages for such injuries.

No service of this summons and complaint was made upon the defendant. It was admitted that he had left the state immediately after the accident and never returned. On August 31, 1954, service was admitted by the 'Attorney General of North Dakota, attorney for unsatisfied judgment fund for the State of North Dakota,' and by the 'Highway Commissioner for the State of North Dakota.' Upon that service the case was tried on its merits and judgment rendered for the plaintiff. An appeal is taken by the attorney general allegedly on behalf of the defendant and the unsatisfied judgment fund.

At the opening of the hearing in this court a motion was made by the plaintiff to dismiss the appeal on the grounds that no statutory undertaking for costs on the appeal as required by Section 28-2709, NDRC 1943, had been served or filed. Plaintiff claimed the appeal was taken by the defendant. There is nothing in the record to show any authority for the attorney general to appear on behalf of Freddy Manz, the defendant, who was never served. It is clear, however, that this appeal was taken by the attorney general in a purely official capacity as attorney for the unsatisfied judgment fund and that no undertaking is necessary. Section 28-2719, NDRC 1943.

The question immediately arises whether the admission of service of the summons and complaint by the attorney general and highway commissioner without any service on the defendant gave the district court jurisdiction to proceed in this matter. The question of jurisdiction should be investigated and decided as soon as it appears. If the court did not have jurisdiction of the matters involved the proceeding would be in vain and the judgment a nullity. It is necessary, therefore, that every court should so far entertain a case as to determine whether it has jurisdiction. Schillerstrom v. Schillerstrom, 75 N.D. 667, 697, 32 N.W.2d 106, 2 A.L.R.2d 271. Every court of general jurisdiction has power to determine whether the conditions essential to its exercise of jurisdiction exist. Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578.

In Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909, 932, the court says:

'A challenge to the jurisdiction of the trial court of the subject-matter of the action is proper at any time; and, without the question being urged by counsel. It is not only proper for this court, but it is its duty, to make all investigations necessary to satisfy itself in regard thereto with reasonable certainty. Pollard v. Wegener, 13 Wis. 569; Damp v. Town of Dane, 29 Wis. 419; Butler v. Wagner, 35 Wis. 54; Mathie v. McIntosh, 40 Wis. 120; Meyer v. Garthwaite, 92 Wis. 571, 66 N.W. 704; In re Klein, 95 Wis. 246, 70 N.W. 64; Burnham v. Norton, 100 Wis. 8, 75 N.W. 304, 12 Ency.Pl. & Pr. 187, 190:

"When it appears that the court has no jurisdiction over the subject-matter of the suit, it will take notice of the defect whether objection is made or not, and will dismiss or stay proceedings ex mero motu, [Of ones own accord] and it is its duty to do so without determining any other matter involved in the litigation.' [Emphasis supplied.]

'The instances are very rare where any court has ventured to invade this salutary doctrine for the purpose of saving a party from the consequences, however severe. It would be difficult to assign any justification for such an invasion that would leave it free from condemnation as an act of usurpation, as it goes to the question of power. A court is all-powerful within its jurisdiction, but is absolutely powerless in any legitimate sense when acting outside thereof.'

Jurisdiction relates to the power of the court to hear and determine the matter in issue.

'The 'subject-matter of a suit,' when reference is made to the questions of jurisdiction, means the nature of the cause of action, and the relief sought.' Patterson Land Co. v. Lynn, 44 N.D. 251, 254, 175 N.W. 211, 212. To have jurisdiction the court must have the power to inquire into the facts, apply the law, and to determine and pronounce the judgment. Rasmusson v. Schmalenberger, 60 N.D. 527, 235 N.W. 496; Christenson v. Grandy, 46 N.D. 418, 426, 180 N.W. 18; Schillerstrom v. Schillerstrom, 75 N.D. 667, 698, 32 N.W.2d 106, 2 A.L.R.2d 271; 21 C.J.S., Courts, Sec. 23, p. 36. Baily on Jurisdiction, Section 4, p. 3.

The first question to determine in this action is whether the court has any jurisdiction over the defendant.

This is not an action that may be brought directly against the fund under Section 39-17031, 1953 Supp. NDRC 1943, when the identity of the person against whom an action for damages, resulting from the operation of a motor vehicle in this state might be brought, cannot be ascertained. The person claimed to have caused the damages in this case is known and made a defendant in this action. No service of the summons and complaint was made upon him. It appears that he was a non-resident but that does not mean that service on him can not be had. In 1935 our state legislature provided a manner of making service in cases of this kind. Section 1, Chapter 174, 1935 S.L., provides for service of a non-resident driver of a motor vehicle on the highways. It reads as follows:

'The use and operation by a non-resident or his agent of a motor vehicle upon and over the highways of the State of North Dakota, shall be deemed an appointment by such non-resident of the Commissioner of Insurance of the State of North Dakota, [This was changed to 'Highway Commissioner' in Chapter 202 S.L.1951] to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him growing out of such use or operation of a motor vehicle over the highways of this state, resulting in damages or loss to person or property, and said use or operation shall be a signification of his agreement that any such process in any action against him which is so served, shall be of the same legal force and validity as if served upon him personally. Service of such process shall be made by serving a copy thereof upon the Commissioner of Insurance [Highway Commissioner] or by filing such copy in his office, together with payment of a fee of $2.00 and such service shall be sufficient service upon the said non-resident; provided, that notice of such service and a copy of the process are within ten days thereafter sent by registered mail by the plaintiff to the defendant at his last known address and return card requested and that the plaintiff's affidavit of compliance with the provisions of this act are attached to the summons.' (Emphasis supplied.)

The revisers of the code in 1943 wrote the first part of that section as Section 28-0611, NDRC 1943, with some changes in language and in their report to the 28th legislature made this explanation: 'This section has been divided for separate statements of distinct proposi...