Haggerty v. Sherburne Mercantile Co.

• Decision Date: 03 November 1947
• Docket Number: 8691.
• Citation: 186 P.2d 884,120 Mont. 386
• Parties: HAGGERTY v. SHERBURNE MERCANTILE CO. et al.
• Court: Montana Supreme Court

186 P.2d 884

120 Mont. 386

HAGGERTY v. SHERBURNE MERCANTILE CO. et al.

No. 8691.

Supreme Court of Montana

November 3, 1947

As Amended on Denial of Rehearing December 2, 1947.

Appeal from District Court, Ninth District, Glacier County; R. M Hattersley, Judge.

Action by Grace Goss Haggerty against the Sherburne Mercantile Company, a corporation, and Otto J. Hartwig, to determine defendants' adverse claims to land of which plaintiff claimed to be the owner in fee simple. From an order setting aside defendants' default, vacating a default judgment against them, and dismissing the action for want of jurisdiction, on defendant corporation's motion plaintiff appeals.

Order vacated and set aside.

Hall & Alexander, of Great Falls, for appellant.

Murrills & Frisbee, of Cut Bank, for respondents.

ADAIR Chief Justice.

On May 27, 1946, the district court of Glacier county, Montana, on motion of the defendant Sherburne Mercantile Company, made an order setting aside defendants' default, vacating the judgment rendered against defendants ten years before, and ordering the action dismissed for want of jurisdiction. From that order plaintiff has appealed.

Jurisdiction. Jurisdiction as applied to a particular controversy is the power to hear and determine that controversy. Reed v. Woodmen of the World, 94 Mont. 374, 22 P.2d 819, 821.

Three things are essential to the jurisdiction in any case: First, the court must have cognizance of the subject-matter of the action; second, the proper parties must be before the court; and third, the action of the court must be invoked by proper pleadings.

Jurisdiction over the Subject Matter. By jurisdiction over the subject matter is meant the nature of the cause of action and the relief sought. Jurisdiction of the subject matter is conferred only by the Constitution and the laws.

On August 11, 1932, the plaintiff, Grace Goss Haggerty, through her counsel, G. S. Frary, Esq., of Cut Bank, filed in the district court of Glacier county, Montana, her duly verified complaint against the defendants, Sherburne Mercantile Company, a Montana corporation, and Otto J. Hartwig, an individual, under the provisions of sections 9479-9489, Revised Codes of Montana 1935, seeking judgment to determine the adverse claims of the defendants to certain lands in Glacier county, Montana, of which plaintiff claims to be the owner in fee simple.

Section 11 of Article VIII of the Constitution of Montana and section 9479, Revised Codes of Montana, confer upon the district court of Glacier county jurisdiction of the subject matter of this action involving the title of real property situate in such county.

The complaint herein states all the ultimate facts essential to state a good cause of action under sections 9479-9489, supra. Thus did the plaintiff properly invoke the action of the district court by the methods established by law for judicial procedure and thus did that court acquire jurisdiction over the subject matter of the action.

Jurisdiction over the Person. Jurisdiction over the person is properly exercised when the party to be acted upon is before the court, either constructively or in fact. Jurisdiction of the defendant may be acquired by various means. It may be compelled by the action of the plaintiff, or, it may be voluntarily conferred by defendant's consent and submission to the court.

Summons was issued herein on August 11, 1932, at the time the complaint was filed. Section 9110, Revised Codes, provides that the 'summons may be served by the sheriff of the county where the defendant is found, or by any other person over the age of eighteen, not a party to the action.' Subdivision 1 of section 9111, Revised Codes, provides that if the suit is against a corporation formed under the laws of this state the summons must be served by delivering a copy thereof 'to the president or other head of the corporation, secretary, cashier, or managing agent thereof.' When the summons is served by the sheriff he is required to make return thereon,--the return being merely a short statement in writing made by the officer under his official oath certifying what has been done in serving the summons. See Montgomery Ward & Co. v. District Court, 115 Mont. 521, 146 P.2d 1012; Kingsbury v. Buchanan, 11 Iowa 387, 391; Strandberg v. Stringer, 125 Wash. 358, 216 P. 25, 26; Horton v. Kansas City, Ft. S. & G. R. Co., 26 Mo.App. 349, 355; Davis v. Reaves, 75 Tenn. 585, 589; Aultman v. McGrady, 58 Iowa 118, 12 N.W. 233.

Five days after suit was instituted the defendant Sherburne Mercantile Company took cognizance of the action and retained George E. Hurd, Esq., an attorney-at-law of Great Falls, Montana, to handle the case for defendants and, in writing, authorized Mr. Hurd to appear in the action and to 'admit service for the Sherburne Mercantile Company and Otto J. Hartwig.' By authorizing their counsel to 'admit service for' them the defendants voluntarily waived compliance with the provisions of the Codes providing for personal service of summons on each defendant. Subds. 1 and 6 of section 9111, Rev.Codes.

On the sixth day, after the commencement of the action, defendants' counsel, Mr. Hurd, gave written notice to plaintiff's counsel, Mr. Frary, of the authority so conferred upon him by defendants and further wrote: 'If you will send me the summons and copy of complaint, I will make admission of service.' Thus did defendants, through their counsel, direct the manner in which they desired summons served and notice of the action given, thereby waiving the manner and form of service of summons and return made thereon provided for in sections 9110 and 9111, Revised Codes.

Copy of complaint and summons were sent to defendants' counsel, Mr. Hurd, on October 8, 1932, as he had directed, and on October 12, 1932, in a letter to plaintiff's counsel, Mr. Hurd admitted that he had received such copies and agreed to file an answer on behalf of the defendants and thus submit to the jurisdiction of the court. Such letter constitutes a written admission of defendants, made by and through their counsel, that summons and a copy of the complaint herein had been delivered to said counsel, Mr. Hurd, he being the person designated by defendants to admit service and to appear in the action for them. Defendants' written admission of service has the same legal effect as personal service of the summons and a copy of the complaint upon defendants made in the manner and form provided in subdivisions 1 and 6 of section 9111, Revised Codes, had compliance with such provisions not been waived by defendants.

Such admission of service made in counsel's letter serves the same purpose as the return made on a summons served by the sheriff. In one case the return made by the sheriff supplies the proof of the service of summons and complaint, subd. 1, sec. 9122, Rev.Codes, and in the other case the written admission of the defendant supplies such proof, subd. 4 of sec. 9122, Rev.Codes. See also, Hendrix v. Fuller, 7 Kan. 331; Cheney v. Harding, 21 Neb. 65, 31 N.W. 255; Id., 21 Neb. 68, 32 N.W. 64.

The court is deemed to have acquired jurisdiction of the parties from the time of the service of summons and a copy of the complaint in a civil action, sec. 9123, Rev.Codes. The written admission of defendants evidences the fact that plaintiff fully complied with defendants' directions by causing copy of the summons and copy of the complaint to be delivered to the agent selected, appointed and empowered by defendants to appear in their behalf and to 'admit service for' them. Sec. 9122, subd. 4 and sec. 9123, Rev.Codes; Smith v. Moore Mill & Lbr. Co., 101 Cal.App. 492, 281 P. 1049; Berry v. Berry, 60 N.D. 353, 234 N.W. 520. The summons which defendants admit having received on October 12, 1932, summoned the defendants to answer the complaint in this action and to file their 'answer within twenty days after the service of this summons, exclusive of the day of service' under penalty of having judgment taken against them by default, sec. 9107, Rev.Codes. Defendants failed to make their promised answer and on November 3, 1932, were in default.

In March 1933, when defendants had been in default for some four months, plaintiff's counsel wrote defendants' counsel about the matter and in reply defendants' counsel, in a letter dated March 11, 1933, wrote: 'Dear Mr. Frary: Your letter dated March 5th, relative to filing answer in the above entitled case, has been received. I am just getting to the point where I am out of jams for a little while. I trust that I will be able to get this answer prepared sometime next week. In looking over the file I find that I may require some additional information, but I will endeavor to get it, and get the case at issue.' (Emphasis supplied.)

Defendants failed to keep the promises and representations made in Mr. Hurd's letters of October 12, 1932, and March 11, 1933, supra, and no answer was made to plaintiff's complaint.

In December, 1935, the law firm of Hall and McCabe succeeded Mr. Frary as plaintiff's counsel in this action and on December 26, 1935, plaintiff, through her new counsel, caused defendants' default to be entered upon filing in the office of the clerk of court the original summons with copies of Mr. Hurd's letter of August 17, 1932, and Mr. Frary's letter of October 8, 1932, attached.

Mr. Hurd's letters to Mr. Frary dated August 13, August 17, and October 12, 1932, and March 11, 1933, and a copy of Mr. Frary's letter to Mr. Hurd dated October 8, 1932, were filed in the cause and, on February 19, 1936, the court heard evidence on behalf of plaintiff and rendered judgment for her.

Two days later plaintiff gave written notice of the entry of the judgment of February 19, 1936, to defendants and to...