Blackmarr v. City Court of Salt Lake City

• Decision Date: 07 December 1934
• Docket Number: 5025
• Citation: 86 Utah 541,38 P.2d 725
• Court: Utah Supreme Court
• Parties: BLACKMARR v. CITY COURT OF SALT LAKE CITY et al

38 P.2d 725

86 Utah 541

BLACKMARR v. CITY COURT OF SALT LAKE CITY et al

No. 5025

Supreme Court of Utah

December 7, 1934

For opinion on rehearing see 86 U. 569, 46 P.2d 1118.

Appeal from District Court, Third District, Salt Lake County; James H. Wolfe, Judge.

Proceeding by Byron D. Blackmarr for a writ of certiorari to the City Court of Salt Lake City and C. F. Dalby, judge, to review an order of the City Court vacating a default judgment rendered in an action brought by plaintiff against the Woodmen of the World. From an order denying the writ, plaintiff appeals.

AFFIRMED.

Beverly S. Clendenin and G. M. Sullivan, both of Salt Lake City, for appellant.

Dan B Shields, of Salt Lake City, for respondent.

ELIAS HANSEN, Justice. FOLLAND and EPHRAIM HANSON, JJ., concur. MOFFAT, Justice, STRAUP, Chief Justice, dissenting.

OPINION

ELIAS HANSEN, Justice.

The sole question presented in this case is the constitutionality of Comp. Laws Utah 1917, § 3287, which provides:

"Every society, whether domestic or foreign now transacting business in this state, within ninety days after the passage of this chapter, and every such society hereafter applying for admission, shall before being licensed, appoint in writing the commissioner of insurance and his successors in office to be its true and lawful attorney, upon whom all legal process in any action or proceeding against it shall be served, and in such writing shall agree that any lawful process against it which is served upon such attorney shall be of the same legal force and validity as if served upon the society and that the authority shall continue in force so long as any liability remains outstanding in this state. Copies of such appointment, certified by said commissioner of insurance shall be deemed sufficient evidence thereof and shall be admitted in evidence with the same force and effect as the original thereof might be admitted. Service shall only be made upon such attorney, must be made in duplicate upon the commissioner of insurance or in his absence upon the person in charge of his office, and shall be deemed sufficient service upon such society; provided, however, that no such service shall be valid or binding against any such society when it is required thereunder to file its answer, pleading, or defense in less than thirty days from the date of mailing the copy of such service to such society. When legal process against any such society is served upon said commissioner of insurance he shall forthwith forward by registered mail one of the duplicate copies prepaid and directed to its secretary or corresponding officer. Legal process shall not be served upon any such society except in the manner provided herein."

Plaintiff claims that the foregoing statute is inhibited by subdivision 6 and a part of subdivision 18, § 26, art. 6, of our state Constitution, which provide:

"The Legislature is prohibited from enacting any private or special laws in the following cases: * * *

"6. Regulating the practice of courts of justice. * * *

"18. * * * In all cases where a general law can be applicable, no special law shall be enacted."

The particulars wherein it is urged that section 3287 above quoted is private or special within the meaning of the Constitution are that such section grants to fraternal benefit societies "thirty days from the date of mailing the copy of such service to such society," in which to plead to an action brought against it in a city court, while other defendants in an action brought in a city court must appear and plead within ten days if served within the county in which the action is brought, otherwise within twenty days after being served with summons. Section 1714, Comp. Laws Utah 1917, as amended by Laws Utah 1919, c. 34, pp. 61 and 62. Also that the act is unconstitutional because it provides that, in case of service upon a fraternal benefit society, service of summons shall be made in "duplicate," while in case of service of summons upon any other defendant only one copy of the summons need be left with the defendant served.

The case is brought to this court in the manner following: Plaintiff in this proceeding brought an action in the city court of Salt Lake City, Utah, against the Woodmen of the World, a corporation. The action, consisting of two causes, was to recover for extra assessments which plaintiff alleged he and his assignor paid to the defendant under protest. Plaintiff further alleged that the assessments sued for were collected wrongfully, unlawfully, and in violation of an injunction issued by the district court of Denver, Colo.

After the action was commenced by filing the complaint, summons was issued, and service thereof was had upon E. B. Heagren, cashier and agent of defendant corporation, and also upon J. G. McQuarrie, state insurance commissioner of Utah. In each instance the sheriff's return shows that service was had by leaving a copy of the summons and a copy of the complaint with the person served. The summonses so served directed the defendant to appear within 10 days after service, if served within the county in which the action was brought, otherwise within 20 days after such service. The summonses were served in Salt Lake county on August 23d. On September 4th following, default of the defendant was entered for its failure to answer or otherwise plead to the complaint within the time specified in the summons. On the day following the entry of the default of the defendant, that is, September 5th, a default judgment was entered in favor of the plaintiff and against the defendant. On September 14th following, notice was served upon counsel for plaintiff informing him that on September 23d defendant would move the city court of Salt Lake City to "set aside the judgment entered against it in favor of the plaintiff * * * for the reason that the said judgment is taken illegally and said attempted service is not made in compliance with the laws of Utah." The city court granted the motion to vacate the judgment rendered against the defendant for the reason that the service of summons in the cause was not had as provided by law. Thereupon plaintiff sued out a writ of certiorari in the district court of Salt Lake county. The writ was denied by that court, and plaintiff prosecutes this appeal from the order denying the writ.

It will be noted from the facts recited that the city court judgment was entered in less than 30 days from the date that the state insurance commissioner mailed to the defendant a copy of the summons served upon him. In fact there is nothing in the record which is brought here for review which shows that the insurance commissioner ever mailed a copy of the summons to the defendant. It will also be noted that the sheriff's return fails to show that summons was served in duplicate upon the state insurance commissioner. Thus, if section 3287, Comp. Laws Utah 1917, is constitutional, admittedly the action of the city court in vacating the judgment rendered in favor of plaintiff and against the Woodmen of the World was proper. There is no question raised as to a proceeding for a writ of certiorari being the proper remedy to test the matter which divides the parties. Therefore we shall dispose of the cause by determining whether section 3287, supra, is or is not unconstitutional. In support of plaintiff's claim that the section is unconstitutional, the following cases are cited: State ex rel. Ramsey, County Attorney, v. Deming, 98 Kan. 420, 158 P. 34; McClain v. Williams, 11 S.D. 60, 75 N.W. 391; People v. Budd, 24 Cal.App. 176, 140 P. 714; Bear Lake County v. Budge, 9 Idaho 703, 75 P. 614, 108 Am. St. Rep. 179; Gulf, Colo. & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 41 L.Ed. 666, 17 S.Ct. 255, 17 S.Ct. 255, 41 L.Ed. 666; Board of Education of Ogden City v. Hunter, 48 Utah 373, 159 P. 1019, 1024. Counsel for plaintiff also call our attention to the following cases: People v. Hibernian Banking Ass'n, 245 Ill. 522, 92 N.E. 305; Wallace v. Leiter, 76 Ohio St. 185, 81 N.E. 187; City of Tulare v. Hevren, 126 Cal. 226, 58 P. 530; People v. Cosmopolitan Fire Ins. Co., 246 Ill. 442, 92 N.E. 922; O'Connell v. Menominee Bay Shore Lumber Co., 113 Mich. 124, 71 N.W. 449; Kaufman v. West, 133 Wash. 192, 233 P. 321; Fountain Park Co. v. Hensler, 199 Ind. 95, 155 N.E. 465, 50 A. L. R. 1518; Davis Constr. Co. v. Board of Commissioners, 192 Ind. 144, 132 N.E. 629, 21 A. L. R. 557; Crisman v. State, 93 Tex. Crim. 393, 248 S.W. 343; Jones v. Paxton (D. C.) 27 F.2d 364; Sorenson v. Webb, 111 Miss. 87, 71 So. 273.

Defendant cites, in support of the claim that the law in question is constitutional, the following cases and authorities: 6 R. C L. 359, and cases there cited; State v. Condon, 108 Tenn. 82, 65 S.W. 871; Union Central Life Ins. Co. v. Black, 67 Utah 268, 247 P. 486, 47 A. L. R. 372; Pickering v. Industrial Comm., 59 Utah 35, 201 P. 1029; Board of Medical Examiners v. Blair, 57 Utah 516, 196 P. 221; Stillman v. Lynch, 56 Utah 540, 192 P. 272, 278, 12 A. L. R. 552; State v. Garness, 83 Wash. 699, 144 P. 929; Union Sulphur Co. v. Reed (D. C.) 249 F. 172; Hill v. Rae, 52 Mont. 378, 158 P. 826, L. R. A. 1917A, 495, Ann. Cas. 1917E, 210; In re Opinion of Justices, 251 Mass. 569, 147 N.E. 681; City of Louisville v. Coulter, 177 Ky. 242, 197 S.W. 819, L. R. A. 1918A, 811; People v. Jordan, 172 Cal. 391, 156 P. 451; Hunsaker v. Harris, 37 Utah 226, 109 P. 1; Ex parte Stephan, 170 Cal. 48, 148 P. 196, Ann. Cas. 1916E, 617; State v. Cannon, 125 Wash. 515, 217 P. 18; Hawthorn v. People, 109 Ill. 302, 50 Am. Rep. 610; Vogel v. Pekoc, 157 Ill. 339, 42 N.E. 386, 30 L. R. A. 491; Cincinnati, H. & D. Ry. Co. v. McCullom, 183 Ind. 556, 109 N.E. 206, Ann. Cas. 1917E, 1165; Saylor v. Duel, 236 Ill. 429, 86 N.E. 119, 19 L....