Glasmann v. Second District Court In And for Weber County

Decision Date23 June 1932
Docket Number5238
Citation12 P.2d 361,80 Utah 1
CourtUtah Supreme Court
PartiesGLASMANN v. SECOND DISTRICT COURT IN AND FOR WEBER COUNTY et al

Original prohibition proceeding by Edris Glasmann to restrain the Second District Court in and for Weber County, State of Utah, and George S. Barker, Judge thereof, from proceeding further in a cause pending in that court, wherein one Leona Hotchkiss was plaintiff and Edris Glasmann defendant.

TEMPORARY WRIT MADE PERMANENT.

Geo. C Buckle and Thatcher & Young, all of Ogden, for plaintiff.

H. C Allen, of Salt Lake City, for defendants.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

ELIAS HANSEN, J.

This is an original proceeding brought in this court. The plaintiff, Edris Glasmann, seeks to restrain and prohibit the district court of Weber County, Utah, and Hon. George S. Barker, one of the judges thereof, from proceeding further in a cause pending in that court wherein one Leona Hotchkiss is plaintiff and Edris Glasmann, the plaintiff here, is defendant. Plaintiff herein bases her claimed right to the relief prayed upon the ground that the district court of Weber county, Utah, is without jurisdiction of her person because she was not served with process as provided by law. Upon plaintiff's affidavit and verified petition a writ of review in the nature of an alternative writ of prohibition was issued by this court. The writ so issued directs that the defendant district court and George S. Barker, one of the judges thereof, do desist and refrain from further proceeding in that certain action entitled Leona Hotchkiss v. Edris Glasmann pending in that court until the further order of this court; that the defendants herein certify and send to this court a transcript of the record and proceedings had and the orders made in connection with the motions of the defendant to quash the service of summons in that action; and that the defendants show cause before this court why they should not be permanently and absolutely restrained and prohibited from further proceeding in that action. Within the time fixed in the writ the defendants certified the record and proceedings and sent the same to this court. They also filed their answer to plaintiff's petition and affidavit for the writ. Defendants make no claim that plaintiff has pursued the wrong remedy in this proceeding. It has been held in a recent decision of the Supreme Court of California that a defendant who feels aggrieved because of an order made by a court of original jurisdiction refusing to quash the service of summons may properly review such order by application for a writ of prohibition. Jardine v. Superior Court in and for Los Angeles County et al., 2 P.2d 756. The certified records and transcript in the case of Leona Hotchkiss v. Edris Glasmann which have been sent to this court pursuant to its writ show: That on July 6, 1931, Leona Hotchkiss filed a complaint against Edris Glasmann in the Second judicial district court of Weber county, Utah. The sheriff of Weber county, Utah, made return that he served "a summons upon Edris Glasmann in Ogden City, Weber County, State of Utah, on the 25th day of June A. D. 1931, by then and there delivering to and leaving with Julia Sadlier, housekeeper of said defendant, and a suitable female person over the age of fourteen years, at the defendant's usual place of abode, in Ogden City, Weber County, State of Utah, a true copy of the hereunto annexed summons, together with a copy of the complaint." The summons so annexed to the sheriff's return is in form prescribed by Comp. Laws Utah 1917, § 6539. The summons so annexed to the return is, however, entitled "In the Third Judicial District Court of Salt Lake County, State of Utah." On July 14, 1931, counsel for Mrs. Glasmann filed a notice of motion in the cause directed to the plaintiff and her attorney wherein it was stated that the defendant appeared "specially for the purpose of this motion only, and for no other purpose," and that on July 20, 1931, at 10 o'clock a. m., or as soon thereafter as counsel could be heard, defendant would move the court to quash the service of summons upon the defendant because the same was not served upon her or at her usual place of abode. The notice of motion recites that the motion will be made upon the records and files in the cause and upon affidavits to be thereafter served and filed. Affidavits were filed which tended to show that Mrs. Glasmann had abandoned her home at Ogden, Utah, and had left for Europe the day before the summons was served, and that the Julia Sadlier with whom the copy of the summons was left had been the housekeeper of Mrs. Glasmann but her services as Mrs. Glasmann's housekeeper had terminated the day before the summons was served; that when the copy of the summons was left with Julia Sadlier, she was at the Glasmann home packing up her belongings preparatory to leaving; and that she so informed the deputy sheriff at the time he left the summons with her. The motion to quash service of summons was resisted by Leona Hotchkiss. She filed an affidavit in support of her position wherein she, in effect, avers that Mrs. Glasmann had left Ogden, if at all, only temporarily at the time the summons was served; that she had left for the purpose of going to a foreign country to place her minor children in school for a year. On August 6, 1931, the court below entered an order denying defendant's motion to quash the service of summons and granting defendant fifteen days after notice in which to demur or otherwise plead to plaintiff's complaint. Notice of the foregoing order was mailed to counsel for Leona Hotchkiss on August 8th. On August 21, 1931, the court made the following order in the cause: "The court upon its own motion orders that defendant be, and is hereby granted fifteen days additional time from August 24th, 1931, in which to demur, answer or otherwise plead to plaintiff's complaint herein."

On September 4, 1931, counsel for Mrs. Glasmann filed a motion in the cause whereby they asked the court to reexamine and reconsider the previous ruling denying defendant's motion to quash the service of summons. By the motion counsel for Mrs. Glasmann appeared specially for the purpose of the motion and for no other purpose, and again moved the court to set aside and vacate the service of summons because it was not served upon defendant or upon a suitable person at defendant's usual place of abode. The motion stated that it was based upon the files and records and upon affidavits attached thereto. The affidavits attached to the motion tend to show that Mrs. Glasmann left Ogden with the intention of permanently making her home elsewhere. On September 8th counsel for Leona Hotchkiss moved the court that the default of Edris Glasmann be entered. One of counsel for Mrs. Glasmann was present in court at the time the motion was made and called the court's attention to the fact that an order had theretofore been made extending the time for defendant to plead. It was urged on behalf of Leona Hotchkiss that the court was without authority on its own motion to extend the time for the defendant to plead, and that therefore plaintiff was entitled to have the default of the defendant entered. Before the court ruled on the motion to enter the default of Mrs. Glasmann, one of her counsel was called as a witness and examined by counsel for Mrs Hotchkiss. He testified in substance that he desired to have the order denying the motion to quash the service of summons upon the defendant reviewed by the Supreme Court; that before doing so, however, he desired to make a further showing before the court below as to the facts concerning the alleged service of summons; that on or about August 21st he had a conversation with Judge Barker; that in that conversation he informed Judge Barker of his intention of having the whole matter reviewed by the Supreme Court; that the time fixed for the defendant to plead had about expired, but that if he asked for additional time to plead he was fearful that such request might be...

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8 cases
  • State v. Perank, 860243
    • United States
    • Utah Supreme Court
    • July 17, 1992
    ...§ 175, at 623-33 (1982). Also, the issue of subject matter jurisdiction can be raised at any time. See Glasmann v. Second District Court, 80 Utah 1, 7, 12 P.2d 361, 363 (1932). This Court invited the United States Department of Justice to file an amicus curiae brief in this case because of ......
  • Thomas v. District Court of Third Judicial Dist. In and For Salt Lake County
    • United States
    • Utah Supreme Court
    • July 12, 1946
    ...the court no jurisdiction over the defendant or voidable giving jurisdiction but subject to timely, direct attack. In Glasmann v. District Court, 80 Utah 1, 12 P.2d 361, the infirmity was in the summons itself in that it did correctly name the court where the defendant was to appear and the......
  • Swetnam v. Dalby
    • United States
    • Utah Supreme Court
    • May 6, 1938
    ... ... DALBY et al No. 5427Supreme Court of UtahMay 6, 1938 ... Appeal ... om District Court, Third District, Salt Lake County, E. E ... Glasmann v. Second Dist. Court, 80 Utah 1, ... 12 P.2d ... ...
  • State v. Gardner
    • United States
    • Utah Supreme Court
    • December 2, 1992
    ...at 2065).23 See Utah Code Ann. § 76-6-302.24 See State v. Perank, 191 Utah Adv.Rep. 5 (July 17, Utah 1992); Glasmann v. Second District Court, 12 P.2d 361, 363 (Utah 1932).25 See generally State v. Perank, 191 Utah Adv.Rep. 5 (July 17, Utah 1992); Ute Indian Tribe v. State of Utah, 521 F.Su......
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