Black v. Clendenin

• Court: Montana Supreme Court
• Writing for the Court: BLAKE
• Citation: Black v. Clendenin, 3 Mont. 44 (Mont. 1877)
• Decision Date: 31 August 1877
• Parties: BLACK, respondent, v. CLENDENIN, appellant.

3 Mont. 44

BLACK, respondent,

v.CLENDENIN, appellant.

Supreme Court of the Territory of Montana.

August Term, 1877.

Appeal from Third District, Lewis and Clarke Counties.

THIS action was tried by WADE, C. J.

SANDERS & CULLEN, and SHOBER & LOWRY, for appellant.

The subpœna was of no validity, and the certificate of the U. S. marshal had no legal efficacy. United States v. Ensign, 2 Mon. 396. The United States marshal is unknown to our Civil Practice Act, and the service of the summons is confided to certain officers and persons. The sheriff can only serve papers in his county and no certificate is of legal force except it be provided by law. Woods v. Nabors, 1 Stew. (Ala.) 172;Hallowell Bank v. Hamlin, 14 Mass. 178;Oakes v. Hill, 14 Pick. 442;Langford v. Sanger, 35 Mo. 133;Allen v. Dunham, 1 Greene (Iowa), 89.

After the appellant excepted to the ruling of the court in refusing to set aside the service of these papers, there was an answer and appearance on compulsion, as effectually as if the papers had been nullities. Such enforced appearance is no waiver of the error which compels it to avoid a default.

CHUMASERO & CHADWICK, for respondent.

It is not claimed by appellant that the summons was not served by any one, but that the person who served it signed the return as United States marshal. In the motion to set aside the proceedings, appellant admits the receipt of the process, and thereby a complete service is shown under the statute. The summons was not a nullity but was perfect. This suit was pending several years before it was tried and was continued from term to termat the instance of both parties. The answer of appellant was a full and unqualified appearance of appellant, and his objection to the jurisdiction of the court was waived thereby.

BLAKE, J.

This action was commenced March 30, 1872, to procure the dissolution of a copartnership and an accounting between the appellant and respondent. The complaint was filed in the office of the clerk of the third judicial district, in and for Lewis and Clarke counties. A summons in conformity to the statutes of the Territory was issued April 1, 1872, and the return thereon is as follows:

“OFFICE OF THE MARSHAL, U. S. DIST. OF MONTANA:

I herby certify that I received the within summons on the 12th day of April, A. D. 1872, and personally served the same on the defendant 29th day of April, A. D. 1872, on George Clendenin, Jr., being the defendant named in said summons, by delivering to him, said defendant, personally, in the county of Dawson, a copy of said summons and a certified copy of the complaint in the action named in said summons, attached to said copy of summons.

MUSCLESHELL, dated this 29th day of April, A. D. 1872.

W. F. WHEELER, Marshal,

By CHAS. D. HARD, Deputy Marshal.”

A subpœna in chancery was also issued April 1, 1872, and served by the same officer, April 29, 1872, in Dawson county. Clendenin filed a motion June 3, 1872, to set aside the proceedings under the summons and subpœna. The attorneys appeared for the purpose of making this motion “and none other,” and stated specifically the grounds thereof. The motion was overruled by the court, June 5, 1872, and Clendenin excepted. The answer of the appellant was filed June 8, 1872, and other proceedings were had in the action, but a judgment in favor of Black was not entered until June 26, 1877. It will not be necessary to consider any other rulings than those which have been referred to, and the arguments of counsel upon most of the questions arising in this case cannot be examined.

When the summons and subpœna were served on the appellant, Dawson county was attached to Meagher county for judicial purposes, and Meagher county belonged to the third judicial district of the Territory. The Civil Practice Act, approved December 23, 1867, is applicable to these proceedings and provides that “the summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him, or appointed by a judge of the court in which the action is brought, or by any white male citizen of the United States, over 21 years of age, who is competent to be a witness on the trial of the action. * * * Sts. 1867, 139, § 28. This section provides further, that, when the summons is served by the sheriff or his deputy, it shall be returned with the certificate or affidavit of the officer of its service. * * * When the summons is served by any other person as before provided, it shall be returned to the office of the clerk from which it issued with the affidavit of such person of its service.” * * *

Statutes containing similar clauses have been enacted in many States and received a uniform construction. The mode, which has been prescribed by them for acquiring jurisdiction, must be followed substantially, or the judgment will be a nullity. The return upon the summons must show that it was served by the officer who is authorized by law to perform this act. In the case at bar it appears that the proper process was not executed by the sheriff of any county in the Territory, or a deputy sheriff, or any person mentioned in the Civil Practice Act. If the summons had been served by any party appointed or empowered to act in this matter, the affidavit thereon must show that he was one of the persons described in the statutes. The certificate or affidavit of service must state the facts on which the right to execute process depends. McMillan v. Reynolds, 11 Cal. 372, and cases there cited; People v. Bernal, 43 Id. 385. It does not appear that the person who served the summons on the appellant was clothed with any power in the premises. Wheeler and Hard were officers of the United States, and, by virtue of their authority, served the foregoing processes. In Clinton v. Englebrecht, 13 Wall. 434, it was held that the United States marshal for Utah Territory was not entitled to serve the processes which issue from the local courts, and that the officers created by the legislative assembly of the Territory had the sole right to execute the same. This authority is decisive of this branch of the case.

The subpœna was as follows:

“In First Judicial District Court, in...