Brooks v. Orchard Land Co., Ltd.

• Decision Date: 22 January 1912
• Parties: MARIA E. BROOKS, Respondent, v. ORCHARD LAND CO., LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

121 P. 101

21 Idaho 212

MARIA E. BROOKS, Respondent, v. ORCHARD LAND CO., LTD., a Corporation, Appellant

Supreme Court of Idaho

January 22, 1912

DEFAULT-SETTING ASIDE-SERVICE OF SUMMONS-PERSONAL SERVICE-SUBSTITUTED SERVICE-SERVICE ON COUNTY AUDITOR-CONSTRUCTION OF STATUTE.

(Syllabus by the court.)

1. Under that part of sec. 4229, Rev. Codes, which provides that "When from any cause the summons in an action has not been personally served on the defendant, the court may allow on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action," held, that where the service of summons is made upon the county auditor and not upon an officer of the company, or its designated agent, that such summons has not been "personally served" on the defendant, within the meaning of the term "personally served" as used in said sec. 4229.

2. Held, that the service of summons upon the county auditor is substituted service, and a substitute for personal service and gives the court jurisdiction the same as personal service to try the action and enter judgment.

3. "Personally served," as used in sec. 4229, Rev Codes, means service upon the defendant personally, and service by leaving a notice at the last and usual place of abode of the defendant is not personal service but a substitute for it.

4. Under the provisions of said sec. 4229, Rev. Codes, where the defendant has not been personally served and an application to set aside a default is made within a year, it is within the legal discretion of the court to grant such application and to open the default and permit the defendant to file an answer on the merits; and the court has jurisdiction to determine whether such application is sufficient or not.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Motion to set aside a default judgment and to permit defendant to answer. Motion denied. Reversed.

Judgment set aside and cause remanded, with instructions. Costs awarded in favor of appellant.

Edgar Wilson, and Fremont Wood, for Appellant.

Whenever the statute provides for "personal service" of process, or that process shall be personally served, there is a general agreement of the courts that such service must be actual and personal upon the party served. (Moyer v. Cook, 12 Wis. 335; Bank v. Holmes, 12 N.D. 38, 94 N.W. 764.)

Other modes of service may be given the force of such service by legislative enactment, but the use of the words "personal service" unqualified in a statute means actual service by delivering to a person and not to a proxy. (Hobby v. Bunch, 83 Ga. 1, 20 Am. St. 301, 10 S.E. 113; Conway v. Campbell, 38 Mo.App. 473.)

Where judgment is entered by default upon substituted service of summons a defendant is entitled, as a matter of right, to have the judgment opened and be allowed to defend upon application, if made within one year, unless by his laches he has lost such right. (Long v. Long, 112 Minn. 400, 128 N.W. 464.)

Discretion of the court in granting or denying motions to set aside default or default judgment is best exercised when it tends to bring about judgment upon the merits. (Pearson v. Fishing Co., 99 Cal. 425, 34 P. 76; Andrus v. Smith, 133 Cal. 81, 65 P. 320; Melde v. Reynolds, 129 Cal. 308, 61 P. 932; Harbaugh v. Water Co., 109 Cal. 70, 41 P. 792.)

Hawley, Puckett & Hawley, for Respondent.

It is the province of the legislature to name the mode of service upon corporations, and to designate the person upon whom service may be made. (Thompson on Corporations, 1st ed., 7504.)

This is personal service within the meaning of our statutes. (In re Risteen, 122 F. 732; Westfall v. Farwell, 13 Wis. 504; Bank v. Holmes, 12 N.D. 38, 94 N.W. 764.)

If the kind of service made in this case is called by another name than simply "personal service," and is properly designated as "substituted service," it would make no difference, as it is by the statute treated as personal service.

Service by copy at the residence of a party is "personal service." (Dunkle v. Elston, 71 Ind. 585; Nelson v. Omaley, 6 Me. 218.)

That a personal judgment can be obtained on substituted service it is only necessary that the provisions of the statute be strictly complied with. (Hewitt v. Weatherby, 57 Mo. 276; Merrill v. Montgomery, 25 Mich. 73; Colton v. Rupert, 60 Mich. 318, 27 N.W. 520; Campau v. Charbeneau, 105 Mich. 422, 63 N.W. 435; Wanamaker v. Poorbaugh, 91 Ill.App. 560.)

SULLIVAN, J. Ailshie, J., concurs. STEWART, C. J., Dissenting.

OPINION

SULLIVAN, J.

This is an appeal from an order denying a motion to vacate and set aside a judgment entered on default. The plaintiff commenced this action on the 24th of September, 1909, to quiet title to a certain tract of land aggregating 4,630 acres, situated in Ada county. It is alleged that the lands were duly assessed to the defendant, the Orchard Land Company, Ltd., for the year 1903, for state, county and school district purposes, and that the taxes amounted to $ 193.80; that said taxes were not paid and said land was thereafter sold by the tax collector to Ada county and a tax certificate was issued therefor; that thereafter the county sold the same to the plaintiff and a tax deed was issued to respondent, and that since said date the plaintiff has been the owner and in the actual possession of said land. It is also alleged that the defendants claim an estate and interest therein adverse to plaintiff, which is alleged to be without any right whatever. Then follows the usual prayer for relief in actions to quiet title.

Summons was issued on September 24, 1909, and thereafter on the next day the sheriff of Ada county returned said summons and certified in his return that the defendant was a corporation and that its principal place of business and principal office is at Orchard in Ada county, that the president, secretary and treasurer and managing agent of said corporation have and each of them has removed and ceased to be a resident of the state of Idaho, and have been absent from the state for more than five years last past. It is recited that the sheriff made the service, on ascertaining the above facts, by delivering a copy of the summons, together with a copy of the complaint in the action, to William L. Cuddy, Esq., auditor of said county, etc. Thereafter on October 16, 1909, the defendant not having answered, its default was entered and upon the same day the plaintiff made her proofs and was adjudged to be the owner of the property described in her complaint and her title thereto was quieted.

On October 13, 1910, and within one year from the date of said judgment, the defendant filed and served its notice of motion and application to set aside and vacate said judgment and made application to be allowed to answer the complaint and defend the action. The application was based upon the affidavit of Edgar Wilson, Esq., and the verified answer of the defendant. After setting forth the facts in said affidavit, affiant avers that the defendant has a good defense to the cause of action stated in the complaint, and that while a copy of the summons and copy of the complaint had been served upon William L. Cuddy, Esq., auditor of Ada county, the same had not been delivered to the defendant. The verified answer sets up a good defense to said cause of action, and it is not necessary to repeat the denials of the answer and the averments and allegations of the cross-complaint which was filed with said answer.

After the hearing the court denied the application on the ground that more than six months have elapsed since the adjournment of the term of court at which said judgment was entered and before the filing of the notice of motion to vacate said judgment and to set aside said default, and it is further stated in said order, as follows: "That the service upon the auditor of Ada county was equivalent to personal service and by reason of the premises the court has no jurisdiction to vacate and set aside the said judgment and decree." It clearly appears that the trial court considered that service upon the auditor of Ada county was personal service upon the officers of the corporation within the meaning of the term "personally served on the defendant" as used in sec. 4229, Rev. Codes.

The first part of said sec. 4229 authorizes amendments upon such terms as may be proper and relief against mistakes in pleadings. The next part of the section provides for the relief of a party from a judgment or order taken against him through mistake, inadvertence, surprise or excusable neglect. Such application, however, must be made "within a reasonable time, not exceeding six months after the adjournment of the term." The next part of said section, and upon which the appellant relies, is as follows: "When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant, or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action." The relief granted by the clause last quoted applies only to actions where there has not been personal service. The first provision of said section, under which application for relief must be made within six months after the adjournment of the term, evidently has reference to cases where the court had jurisdiction of the parties either by personal service or appearance in the action, and where the judgment was nevertheless taken against such parties "through mistake, inadvertence, surprise or excusable neglect."

Then we have in this...