Crisp v. Gochnour

• Decision Date: 15 September 1914
• Docket Number: No. 3575.,3575.
• Citation: Crisp v. Gochnour, 34 S. D. 364, 148 N. W. 624 (S.D. 1914)
• Parties: CRISP et al. v. GOCHNOUR.
• Court: South Dakota Supreme Court

34 S.D. 364

148 N.W. 624

CRISP et al.

v.GOCHNOUR.

No. 3575.

Supreme Court of South Dakota.

Sept. 15, 1914.

Appeal from Circuit Court, Moody County; Joseph W. Jones, Judge.

Action by W. H. Crisp and another against H. R. Gochnour. From an order refusing to quash service of summons, defendant appeals. Reversed.Rice & Benson, of Flandreau, for appellant.

Robertson & Dougherty, of Dell Rapids, for respondents.

POLLEY, J.

This appeal is from an order overruling a motion to quash the service of the summons and complaint. The summons and complaint were served in Moody county on the 1st day of September, 1913. No appearance of any kind was entered by defendant within 30 days thereafter, and, on the 17th day of October following, the court, upon proper proof of default, entered judgment for plaintiff for the relief prayed for in the complaint. On the 27th day of said month, defendant, by his attorneys, served upon plaintiff the following notice of motion:

“You will please to take notice that the undersigned appears specially and for the purpose only of the motion *** will move the court for an order quashing the service of the summons and complaint in the above-entitled action, and for an order vacating and setting aside the judgment in said action. Said motion will be based upon the summons, complaint, sheriff's return of service of summons and complaint, and the order for judgment and the judgment in said action.”

Plaintiff filed written objections to the granting of said motion, which objections were based upon the ground that the notice does not state the grounds upon which the motion will be based, and that it does not specify whether defendant was objecting to the jurisdiction of the court as to his person or to the subject-matter of the action. After such objections had been filed but before the motion was passed upon by the court, said motion was withdrawn by defendant, and, in lieu thereof, defendant served a second notice of motion similar to the first, except that it stated that the motion would be based upon the grounds that the summons and complaint in the action “were served upon defendant on September 1, 1913, said day being a legal holiday, to wit, Labor Day.” Upon the submission of the motion, plaintiff asked that his objections above referred to, so far as applicable to the second motion, be considered by the court. The motion was overruled by an order of the court wherein it is recited that defendant appeared “specially and for the purpose of said motion only,” and from this order defendant appeals.

[1]It is appellant's contention that, as the summons and complaint were served on Labor Day, which is a legal holiday, the service thereof was a nullity, and the court failed to acquire jurisdiction of the defendant's person, and therefore was without authority to enter a valid judgment in the case. While respondent does not contend that valid service of legal process can be made on all legal holidays, he attempts to distinguish Labor Day from certain other legal holidays; but this distinction cannot be recognized, or rather, there is no such distinction. Labor Day is one of the days on which the service of legal process is expressly prohibited by statute. Section 2458, Civ. Code, as amended by section 1, c. 181, Laws of 1907, enumerates every Sunday, the first day of January, the 12th day of February, the 22d day of February, the 30th day of May, the 4th day of July, the first Monday in September, the 25th day of December, every day on which an election is held throughout the state, and every day appointed by the President of the United States or the Governor of this state for the public fast, thanksgiving,...