Bowen v. Harper

• Decision Date: 24 November 1899
• Citation: 59 P. 179,6 Idaho 654
• Parties: BOWEN v. HARPER
• Court: Idaho Supreme Court

59 P. 179

6 Idaho 654

BOWEN v. HARPER

Supreme Court of Idaho

November 24, 1899

SERVICE OF SUMMONS OUT OF THE STATE-DEFAULT-VOID JUDGMENT.-When after order for publication of summons against an absent defendant has been duly made, the summons is personally served on such absent defendant out of the state, such service does not become complete until the expiration of the time prescribed in the order for publication; and where such order prescribed one month for such publication, as in the case at bar, the defendant served out of the state has one month and forty days in which to answer and a default judgment entered against him during said time is void and will be reversed on appeal.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Reversed and remanded. Costs of appeal awarded to the appellant.

W. C Howie, for Appellant.

The default of John E. Harper in this cause was improperly entered. The service of the summons was not complete until one month after service on John E. Harper on March 21, 1898 and Harper had forty days after that to answer, or all of April 30th. (Rev. Stats., sec. 4146; Abrahams v. Mitchell, 8 Abb. Pr. 123; Fiske v. Anderson, 12 Abb. Pr. 8; Brooklyn Trust Co. v. Buhmer, 49 N.Y. 84; Market Nat. Bank v. Pacific Nat. Bank, 89 N.Y. 397; Tomlinson v. Van Vechten, 6 How. Pr. 199; Grewell v. Henderson, 5 Cal. 465.) John E. Harper not being in default, a judgment against him by default is void. (Morton v. Morton, 16 Colo. 358, 27 P. 718; Gibson v. Smith, 1 Colo. 7; Grewell v. Henderson, 5 Cal. 465.)

Wyman & Wyman, for Respondent, cite no authorities on the point not decided by appellant's counsel.

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

The plaintiff commenced this action in the court below to foreclose a mortgage. Two of the defendants were served with summons in this state; one John E. Harper, the principal defendant, being absent. Order for publication of summons against said absent defendant, Harper, was duly made February 10, 1898. In lieu of publication of the summons, the plaintiff caused the summons and copy of complaint to be served upon said defendant, Harper, personally on the twenty-first day of February, 1898, in the city of Chicago, in the state of Illinois. The default of said defendant, Harper, was entered by the clerk in the action on April 19, 1898. April 25, 1898, said defendant, Harper, filed a motion to set said default aside, upon the ground that the same was entered before the time of said defendant to answer had expired, and thereafter filed a demurrer to the complaint. On May 5, 1898, said motion came on to be heard, and was denied; and on the same day, on evidence heard on behalf of the plaintiff, the court entered its decree of foreclosure in favor of the plaintiff.

The principal question before us is, Was the default of the absent defendant prematurely entered? If so, the court below should have granted said defendant's motion to set the default aside, and its failure so to do was reversible error. The solution of this question depends upon the construction to be given to section 4146 of the Revised Statutes, which section is as follows: "The order must direct the publication to be made in a newspaper to be designated as the most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; but publication against a defendant residing out of the territory or absent therefrom must not be less than one month. In case of publication, where the residence of a nonresident or absent defendant is known, the court or judge must direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the person to be served at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the territory is equivalent to publication and deposit in the post office; and in either case the service of the summons is complete at the expiration of...