Call v. Rocky Mountain Bell Telephone Co.

• Decision Date: 22 May 1909
• Citation: 16 Idaho 551,102 P. 146
• Parties: IRA CALL, Respondent, v. ROCKY MOUNTAIN BELL TELEPHONE COMPANY, Appellant
• Court: Idaho Supreme Court

102 P. 146

16 Idaho 551

IRA CALL, Respondent, v. ROCKY MOUNTAIN BELL TELEPHONE COMPANY, Appellant

Supreme Court of Idaho

May 22, 1909

SERVICE OF SUMMONS-INSUFFICIENT PROOF OF SERVICE-AMENDED RETURN OF SERVICE-WHEN AMENDMENT MAY BE MADE-AMENDMENT AFTER APPEAL.

1. Where actual service of summons issued from a justice or probate court has been made, but the return of service was insufficient and did not show a good service, and the default of the defendant was entered and judgment was taken against him, it is proper to thereafter allow an amended return of service to be made so as to show that a good and valid service had in fact been made.

2. Where the return of service of summons is insufficient to establish the fact of service, but judgment by default is entered and the defendant appeals to the district court on questions of law alone, and there moves to vacate and set aside the judgment on the ground that there is no valid proof of service, it is not error for the district court to permit the filing of an amended return of service which has been properly made in the justice or probate court in which the judgment was entered, and which return has been duly certified to the district court.

3. Jurisdiction to enter a judgment against a defaulting defendant rests upon the fact of service itself, and the return of service is simply the evidence of the jurisdictional fact, and is subject to amendment so as to make it conform to the facts. Jurisdiction of the person of the defendant is acquired by service of process, and attaches on the service and not upon the return.

4. It would be a manifest miscarriage of justice to allow a defendant who has been actually served with process and who has permitted a default judgment to be entered against him to thereafter procure a vacation of the judgment either in the court in which it was rendered or on appeal, simply because the proof of service is insufficient, where the plaintiff is at the very time in court presenting a sufficient and amended proof of service, and asking for the opportunity to file the same and have it made a part of the record in the case.

(Syllabus by the court.)

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Alfred Budge, Judge.

Action in probate court for debt. Judgment for plaintiff by default. Defendant appealed to the district court, where the judgment was affirmed, from which judgment defendant appealed to this court. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Clark &amp Budge, for Appellant.

The records and files of the probate court at the time judgment was entered did not show that service had been made upon defendant (appellant), and therefore there were not sufficient jurisdictional facts shown to authorize the court to enter judgment. (Kane v. Desmond, 63 Cal. 464; Layton v. Trapp, 20 Mont. 453, 52 P. 208; Segar v. Muskegon S. & L. Co., 81 Mich. 344, 45 N.W. 982; Cook v. Rowe (N. Y.), 26 Hun, 673.)

The authority and power of the inferior court to enter judgment depends not alone upon the fact of regular service, but upon the complete showing by the return that such service was made. Such a court cannot proceed without the precedent valid service being shown, even if there was an actual compliance with the law in making service, for it gets its knowledge of the actual service, upon which knowledge it is authorized to proceed, only from the return. (Belfils v. Flint, 15 Ore. 158, 14 P. 296; State v. Harrington, 31 Mont. 294, 78 P 484.)

When the respondent applied to the probate court for the filing of this amended return, the cause was then beyond the control of that court; it had no right and no authority to permit the amendment. (Knoff v. Puget Sound Co., 1 Wash. St 57, 24 P. 27.) And the district court had no authority or jurisdiction to permit the amended return to be filed in aid of the judgment appealed from, because the offer to amend the return after appeal was too late. (Hall v. Graham, 49 Wis. 553, 5 N.W. 943; Jenkins v. Crofton, 10 Ky. Law Rep. 456, 9 S.W. 406; Texas State Fair v. Lyon, 5 Tex. Civ. App. 382, 24 S.W. 328; Knoff v. Puget Sound Co., supra.)

Standrod & Terrell, for Respondent.

It is the fact of service that gives the court jurisdiction, and not the proof of service. (Hermann v. Santee, 103 Cal. 519, 42 Am. St. 145, 37 P. 509; Drake v. Duvenick, 45 Cal. 463; Burke v. Inter-State Sav. & L. Assn., 25 Mont. 315, 87 Am. St. 416, 64 P. 879-882; Jones v. Gunn, 149 Cal. 687, 87 P. 577; Estate of Newman, 75 Cal. 220, 7 Am. St. 146, 16 P. 887; Howard v. McChesney, 103 Cal. 537, 37 P. 523; Hibernia Sav. & L. Soc. v. Matthai, 116 Cal. 424, 48 P. 370; Woodward v. Brown, 119 Cal. 283, 63 Am. St. 108, 51 P. 2; Bank of Orland v. Dodson, 127 Cal. 208, 78 Am. St. 42, 59 P. 584; Sichler v. Look, 93 Cal. 600, 29 P. 220; Lunnun v. Morris, 7 Cal.App. 710, 95 P. 907; Pico v. Sunol, 6 Cal. 295; Freeman on Judgments, 4th ed., sec. 89.)

And a subsequent amendment of the record by supplying this proof of service is as effective to support the judgment as if it had been filed before its entry. (Hibernia S. & L. Soc. v. Matthai, supra; Drake v. Duvenick, supra; Hermann v. Santee, supra; Sichler v. Look, supra; Freeman on Judgments, sec. 89b; Allison v. Thomas, 72 Cal. 562, 1 Am. St. 89, 14 P. 309; Perri v. Beaumont, 88 Cal. 108, 25 P. 1109.) If service has in reality been had, then jurisdiction attaches. "Whenever it transpires that the return has been so corrected, by proper authority, as to show adequate service, then the record will be sufficient." (Ranch v. Werley, 152 F. 509-515; Weaver v. Southern Ore. Co., 31 Ore. 14, 48 P. 167; Burr v. Seymour, 43 Minn. 404, 19 Am. St. 245, 45 N.W. 715; Frisk v. Reigelman, 75 Wis. 499, 17 Am. St. 198, 43 N.W. 1117, 44 N.W. 766; Hermann v. Santee, 103 Cal. 519, 42 Am. St. 145, 37 P. 509.)

In the justice's court an officer may be permitted, on proper showing and notice, either before or after judgment, to amend his return to the summons according to the facts. (24 Cyc. 527-528; Martin v. Castle, 182 Mo. 216, 81 S.W. 426.) "These amendments have been permitted in the circuit court on appeal, on the ground that they could have been permitted in the justice's court." (Turner v. Kansas City R. R. Co., 78 Mo. 578; Commission Co. v. Estep, 63 Mo.App. 543; Boatmen's Sav. Bank v. Grew, 84 Mo. 477; School Dist. v. Holt, 126 Mo.App. 571, 105 S.W. 32; Transier v. St. Louis etc. R. R. Co., 54 Mo. 189.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This appeal is from the judgment of the district court rendered and entered on appeal from a judgment of the probate court of Bannock county. The case was originally commenced in the probate court of Bannock county on June 16, 1908, for the recovery of the sum of $ 477.73. Summons was issued on the same day the action was instituted and was returned the following day. The defendant failed to appear and, after waiting the statutory time, the plaintiff introduced his evidence and judgment was entered in his favor. The defendant appealed to the district court on questions of law alone. In the district court the contention was made by the defendant and appellant that the return of summons was insufficient, and that the probate court therefore had no jurisdiction to enter judgment against the defendant. After the case was argued in the district court, the plaintiff secured an amended return and had it filed in the probate court as of the date of the original return, June 17th, and thereupon the probate judge certified the same up to the district court. On application of the plaintiff, in the district court, the latter court permitted the amended return to be filed with the papers in the case. He thereupon overruled the contention made by the plaintiff on the jurisdictional question and affirmed the judgment of the probate court. This appeal is from the judgment thus made and entered by the district court.

The portion of the original return to which appellant takes exception is as follows:

"That she received said summons on the 16th day of June, 1908, and thereafter on the 16th day of June, 1908, she served the said summons on the defendant, Rocky Mountain Bell Telephone Company, the corporation mentioned in said action as the defendant herein, by delivering a true copy thereof to V. R. Lanestrem, the managing agent of said defendant corporation within the state of Idaho, who has charge of the business of said defendant within Bannock county."

Appellant's contention is that the return wholly failed to show where the service was made, and that it should have affirmatively shown that the service was made within the jurisdiction of the probate court, namely, within Bannock county, and that the failure to do so was jurisdictional, and left the court without any jurisdiction to enter judgment in the case. It is not denied but that service was actually made within Bannock county. The only controversy arises as to the proper proof of service not being made prior to the entry of judgment. If the jurisdiction of the probate court was dependent on a proper proof of service being made prior to the rendition of judgment, then, of course, respondent should not have been allowed to file an amended return either in the probate court or in the district court. If, on the other hand, the question of jurisdiction is dependent on the fact of service, then the return might be amended even after judgment. On this question the courts are not in harmony. Some courts hold that proof of service is the jurisdictional question. Much that has been said on that side of the question, however, has been in cases where the return was wholly insufficient to show service and support the judgment and no...