Coman v. Williams

• Decision Date: 31 October 1951
• Docket Number: No. 7259,7259
• Citation: 78 N.D. 560,50 N.W.2d 494
• Parties: COMAN v. WILLIAMS et al.
• Court: North Dakota Supreme Court

Page 494

50 N.W.2d 494

78 N.D. 560

COMAN v. WILLIAMS et al.

No. 7259.

Supreme Court of North Dakota.

Oct. 31, 1951.

Rehearing Denied Jan. 4, 1952.

Syllabus by the Court.

1. Section 28-0632, RCND 1943 is a statement of the liberal amendment rule with respect to process and the proof of service thereof, formerly found in Section 7482, CLND 1913, and is a legislative declaration that amendments may be allowed in the absence of a showing that material prejudice to the substantial rights of the party resisting the amendment would result from its allowance.

2. Where a summons contains all of the recitals required by Section 28-0502, RCND 1943, and is in the form prescribed by Section 28-0503, RCND 1943, and the complaint is not served with the summons but is filed with the clerk of the district court in the County in which the action is commenced, the fact that no mention is made in the summons of such filing, as prescribed by Section 28-0504, RCND 1943, renders the summons voidable, but not void, and it may be amended upon proper application.

3. Proceedings for the securing of service of process by publication must strictly comply with statutory provisions, but this rule does not require the use of the exact language of the statute in the affidavit for publication of summons as prescribed by Section 28-0620 and 28-0621, RCND 1943, it being sufficient to state in the affidavit the things which the statute requires in words or phrases of the same meaning as those of the statute or importing nothing less than the statutory requirement.

J. K. Murray, Bismarck, for third party claimant and appellant.

Zuger & Zuger, Bismarck, for plaintiff and respondent.

MORRIS, Chief Justice.

This is an appeal from an order overruling a motion by a third party claimant to discharge an attachment. On July 27, 1950, a summons was issued by the plaintiff and directed to D. Williams, also known as Dan Williamson, defendant. At the same time, a complaint was issued seeking the recovery of $700 alleged to have been paid for the purchase of certain goods induced by the false representations of the defendant. On the same date the summons was issued, the plaintiff executed and filed with the Clerk of the District Court of Burleigh County, North Dakota, an affidavit for attachment, setting forth that the defendant had absconded or concealed himself and that the debt upon which the action was commenced was incurred for property obtained under false pretenses. The attachment was perfected by the issuance of a warrant of attachment under which the sheriff of Burleigh County levied upon certain personal property. Personal service could not be made of the summons in the action because the defendant could not be found, and the sheriff made his return accordingly, on August 31, 1950, and on the same day, plaintiff's attorney executed an affidavit for publication of summons, and the summons that had been issued was published on August 3, 10, and 17, 1950, as appears by the affidavit of the publisher.

In the meantime, and on August 1, 1950, Morrison Fur Company, a corporation, through its attorney, filed a third party claim to the property attached. The plaintiff then furnished the sheriff with an undertaking to indemnify him against the claim. Section 32-0813, RCND 1943. On September 7, 1950, the defendant, through his attorney, served a notice of special appearance and objection to the jurisdiction of the court excepting to the validity of the summons upon grounds which will be discussed in detail in connection with a subsequent challenge to the validity of the summons by the third party claimant. The plaintiff moved to amend the summons. Both motions were heard at the same time. The trial court overruled the defendant's objection to the jurisdiction of the court and granted plaintiff leave to amend the summons. Thereafter, the Morrison Fur Company, as third party claimant, attacked the validity of summons and the validity of the affidavit of publication in the main action by a motion to discharge the attachment. The trial court overruled the motion to discharge the attachment and the third party claimant appeals.

The property of the defendant may be attached at or after the commencement of an action in certain cases specified in Sections 32-0801 and 32-0802, RCND 1943. Section 32-0803, RCND 1943 provides that an action shall be deemed commenced within the meaning of these sections: 'when the summons is issued, but personal service of such summons must be made or publication thereof commenced within sixty days after the issuance of the warrant of attachment.'

The warrant of attachment herein was issued on the 27th day of July, 1950. Publication of the summons was commenced well within the sixty day period. The third party claimant, Morrison Fur Company, contends that the summons as issued and published does not conform to the requirements of the statute and is fatally defective, and that therefore the attachment, which is dependent upon the commencement of the action by the issuance of a valid summons, must fall and the motion for dismissal of the attachment must prevail.

Section 28-0502, RCND 1943 provides: 'The summons in a civil action in a district court shall contain the title of the action, shall specify the court and county in which the action is brought, and shall specify the names of the parties to the action. It shall be subscribed by the plaintiff or his attorney, who shall add to his signature his post office address.'

Section 28-0503, RCND 1943 sets forth a form of summons and provides that, exclusive of the title of the action and the subscription, the summons shall be in substantially the prescribed form. The summons in this case complies with both of the sections of the code just referred to. It is as follows:

'State of North Dakota County of Burleigh

In District Court Fourth Judicial District

'Lee Coman, Plaintiff

vs.

D. Williams, also known as Dan Williamson, Defendant} Summons

'The State of North Dakota to the Above Named Defendant:----

'You are hereby summoned to answer the complaint of the plaintiff in the above entitled action, and to serve a copy of your answer upon the undersigned, in the City of Bismarck, in the County of Burleigh, and State of North Dakota, within thirty days after the service of this Summons upon you, exclusive of the day of service, and in case of your failure to appear or answer, Judgment will be taken against you by default for the relief demanded in the complaint.

'Dated this 27th day of July, 1950.

's/Zuger & Zuger by John A. Zuger

'Zuger and Zuger

'Attorneys for the Plaintiff

Dakota National Bank Building Bismarck, North Dakota'

The summons was not personally served. It was served by publishing it in full as above set forth in accordance with the provisions of Section 28-0622, 1949 Supp. to RCND 1943.

Section 28-0504, RCND 1943 provides that a copy of the complaint need not be served with the summons, but in such case the summons shall state that the complaint is or will be filed with the clerk of the district court in the county in which the action is commenced. The statement required by this section was omitted in the summons, both as issued and as published. This the third party claimant contends is fatal to the jurisdiction of the court and that no action was commenced which could be made the basis of an attachment.

Section 28-0505 provides: 'Where the summons in a civil action in a district court states that the complaint is or will be filed with the clerk of the district court and the same is not so filed within thirty days after the date of such summons, the action will be deemed discontinued.'

The complaint in this case, although not mentioned in the summons or served with it, was filed in the office of the clerk of the district court of Burleigh County on July 27, 1950, which was the date that the summons was issued.

There is presented by this record the question whether the omission of the requirement of Section 28-0504 that the summons shall state that the complaint is or will be filed with the clerk of the district court in the county in which the action is commenced is fatal to the jurisdiction of the court and is an unamendable defect in the summons, although the complaint is actually filed in compliance with the requirement of Section 28-0505.

Section 28-0632 provides that: 'At any time, in its discretion, and upon such notice and terms as it deems just, the court may allow any process or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.'

This section is a statement of the liberal amendment rule formerly found in Section 7482, CLND 1913 and is a legislative declaration that amendments may be allowed in the absence of a showing that material prejudice to the substantial rights of the party resisting the amendment would result from its allowance. If the process is so defective that it is absolutely void, there is a complete absence of power on the part of the court to amend. The jurisdiction of the court rests upon the process and the court can obtain no jurisdiction through a void process, and it follows that such a process cannot be amended. Our summons, which we commonly call process, is a statutory notice to the defendant that he is being sued by the plaintiff and, as Section 28-0502, RCND 1943 requires, must specify the court and county in which the action is brought, and thus advise the defendant in what court he is being sued. It must specify the names and parties to the action so that the defendant may know that he is a party against whom the action is brought, and it must be subscribed by the plaintiff or his attorney, who is required to add to his signature his post office address, and thus advise the defendant who is seeking redress against him and where that person or his attorney may be found. All these statutory...