Hill v. Morgan

• Court: Idaho Supreme Court
• Writing for the Court: [9 Idaho 720] STOCKSLAGER, J. CHARLES MANLEY,
• Citation: 76 P. 323,9 Idaho 718
• Decision Date: 27 February 1904
• Parties: HILL v. MORGAN, JUDGE

76 P. 323

9 Idaho 718

HILL
v.
MORGAN, JUDGE

Supreme Court of Idaho

February 27, 1904

MANDAMUS-JUDICIAL OFFICER-PRELIMINARY QUESTIONS-SERVICE OF SUMMONS ON CORPORATIONS-ALIAS SUMMONS-WHAT IT MUST CONTAIN.

1. The rule that mandamus will not issue to control discretion or revise judicial action has no application to the determination of preliminary questions, relating to the sufficiency of the service of summons.

2. When the tribunal or officer whose duty it is to take jurisdiction of a matter believing, erroneously, that it has no jurisdiction, declines to consider the matter, mandamus will issue to compel action.

3. Service of summons on a corporation is sufficient when it is shown to have been served upon some one who had theretofore been served with process, and the corporation accepted such service by its appearance; and this is especially true where it is not shown that the corporation, through its attorney or someone authorized to act for it, did not inform the party in interest how better service could be made.

4. An alias summons that substantially complies with the original is not defective as to form under the provisions of section 4141, Revised Statutes of Idaho.

5. A summons that states the names of the parties to the action, the court in which it is brought, the county in which the complaint is filed, a statement of the nature of the action in general terms, a direction that the defendant appear and answer, and if for damages, a notice that unless defendant so appears and answers, the plaintiff will apply to the court for the relief demanded in the complaint, is not defective under the provisions of section 4140, Revised Statutes, even though it does state the amount demanded.

(Syllabus by the court.)

ORIGINAL proceeding in this court for a writ of mandate. Application for writ granted.

Writ ordered. Costs of this proceeding awarded to the plaintiffs.

A. G. Kerns, for Plaintiffs.

The writ properly lies in cases where inferior courts refuse to take jurisdiction where by law they ought to do so, or where, having obtained jurisdiction in a cause, they refuse to proceed in the due exercise thereof. (Ex parte Parker, 120 U.S. 737-743, 7 S.Ct. 767, 30 L.Ed. 818, and cases cited.) The writ will lie to vacate an order vacating the service of process on the defendants. (People v. Wayne Circuit Judge, 22 Mich. 493; People v. Swift, 59 Mich. 529, 26 N.W. 694.) Mandamus lies to compel a court to proceed where it has wrongfully decided, on preliminary motions, it has no jurisdiction. (Merrill on Mandamus, secs. 36, 46, 203-207.) If the original summons and the alias summons were sufficient in form and substance, and did not mislead the defendants upon whom served to their prejudice, the service was good and the court acquired jurisdiction. The defendants made no showing that they had been misled to their prejudice or otherwise by the summons, or its service. (Idaho Rev. Stats., sec. 4140; Betwick et al. v. Muir et al., 83 Cal. 368, 23 P. 389.) It is manifest without argument that a defect in the summons which will be sufficient to constitute it void or erroneous must be of such a character as to mislead the defendant to his prejudice, and to prejudicially affect, or tend to affect, some substantial right. (Rich v. Collins et al., 12 Colo. App. 511, 56 P. 207; People v. Dodge, 104 Cal. 487, 38 P. 203; Clark v. Palmer, 90 Cal. 504, 27 P. 375.) The sheriff's return of service of summons on a corporation by delivering a copy of the process and complaint to an officer raises a presumption that such person is an officer as stated in the return. This presumption is not rebutted by a mere denial by the officer or person served. The corporation should show who is its officer upon whom process might be served. It must give the plaintiff a better service. (4 Thompson on Corporations, 4626, 4698; Salt Lake Foundry etc. Co. v. Mammoth M. Co., 6 Utah 351, 23 P. 760; 6 Thompson on Corporations, 7509, 7515, 7524, 7546; Badger v. United States, 93 U.S. 599-604, 23 L.Ed. 991.) The supreme court will review the decision of a lower court, on a petition for writ of mandate, where the judge refuses to proceed with the trial of a cause upon the ground that the summons is defective in material parts, and by reason of such defects no jurisdiction over the person of the defendant has been obtained, and if the decision is found erroneous will issue the writ. (Stanquist v. Hebbard, 122 Cal. 268, 54 P. 841.)

C. W. Beale, for Defendant.

Mandamus will not lie in the matter of judicial discretion. ( Board of Commrs. v. Mayhew, 5 Idaho 572, 51 P. 411-414; Francisco v. Manhattan Ins. Co., 36 Cal. 283; People v. Weston, 28 Cal. 640; Lewis v. Barclay, 35 Cal. 213; Havens v. Stewart, 7 Idaho 298, 62 P. 682.) The writ will not lie while there is a plain, speedy and adequate remedy at law. (Wright v. Kelley, 4 Idaho 624, 43 P. 565; In re Rice, 155 U.S. 396, 15 S.Ct. 149, 39 L.Ed. 198; American etc. Co. v. Jacksonville etc. Ry. Co., 148 U.S. 372-379, 13 S.Ct. 758, 37 L.Ed. 486.) The service of a summons on a person not longer or at the time of service not an officer of a corporation is not sufficient to support a judgment. ( Thum v. Pyke, 8 Idaho 11, 66 P. 157.) Service of summons to be good must be made in the manner prescribed by the statutes, and all of the statutes must be complied with. (Applington v. G. V. B. Min. Co., 6 Idaho 216, 55 P. 241; Strode v. Strode, 6 Idaho 67, 96 Am. St. Rep. 249, 52 P. 161.) Summonses must contain all that is required by statute, whether deemed needful or not. (Ward v. Ward, 59 Cal. 139.)

STOCKSLAGER, J., SULLIVAN, C. J. Sullivan, C. J. Stockslager, J., and Ailshie, J., concurring.

OPINION [76 P. 324]

The facts are stated in the opinion.

[9 Idaho 720] STOCKSLAGER, J.

This is an original proceeding in this court. The petitioners file their petition for a writ of mandate, viz.:

"Josiah Hill and J. S. Hill respectfully petition for a peremptory writ of mandate commanding and requiring Ralph T. Morgan, judge of the district court of the first judicial district of the state of Idaho in and for the county of Shoshone, to proceed with the trial of an action pending in said district court wherein these petitioners are plaintiffs, and the Standard Mining Company, Richard Wilson, Walter Mackay, William R. Leonard, James Leonard and A. L. Scofield, copartners doing business under the firm name of the Mammoth Mining Company, are defendants, and to exercise jurisdiction over the defendants [9 Idaho 721] served in said action, and for all other and proper general relief.

"This petition is based upon the accompanying affidavit of Josiah Hill, and exhibits to be filed in this court with this petition."

The affidavit of Josiah Hill, after stating that he is one of the plaintiffs and that defendant is the judge of the first judicial district of Idaho states that on the thirtieth day of September, 1903, plaintiffs commenced an action against the Standard Mining Company, a corporation organized and existing under the laws of the state of Idaho Richard Wilson, Walter Mackay, William R. Leonard, James Leonard and A. L. Scofield, copartners doing business under the firm name of the Mammoth Mining Company, to recover damages sustained by plaintiffs by reason of the overflow of their lands by tailings from the mining works of defendants, by filing a duly verified complaint in due form of law in the office of the clerk of the district court of the first judicial district of the state of Idaho in and for the county of Shoshone, and on the same day a summons in due form of law was issued out of said court in said action by said clerk, and on October 7, 1903, was served on A. L. Scofield, on October 14, 1903, served on the Standard Mining Company; and on October 19, 1903, was served on James Leonard, defendants therein named, by delivering a copy of the summons and a copy of the complaint in said action to each of said defendants, and said summons was on October 23, 1903, returned into court by said sheriff with a return indorsed thereon showing such service and that the other defendants could not be found; that a copy of said summons and the return indorsed thereon and the amended return made thereon is hereto attached marked exhibit "A" and made a part of this affidavit.

That each of said defendants served appeared specially by their counsel and moved to quash said summons and the service thereof on the ground that said summons did not contain matters required by paragraphs 2 and 4 of section 4140 of the Revised Statutes.

That on October 27, 1903, an alias summons was issued in said action by the clerk of said court on the application of [9 Idaho 722] plaintiffs, and service was made on Richard Wilson, Walter Mackay and another service was made on the Standard Mining Company.

Copies of the summons, the alias summons and the motions to quash were filed and made part of this affidavit. That each of said defendants served appeared specially by their counsel and moved to quash said summons and the service thereof on the ground that said alias summons did not contain matters required by paragraphs 2 and 4 of section 4140, Revised Statutes.

That on December 1, 1903, all of said motions of defendants were submitted to and by the court taken under advisement, and thereafter on December 4, 1903, each of said motions was sustained by defendant as judge of said court. Plaintiff then and there in open court requested defendant as such judge to enter the default of each of such defendants served in said action and that the trial of the cause against the defendants served proceed on its merits. Defendant then and there, as such judge, denied such requests and ever since has, and does now, refuse to proceed with the trial of said cause.

That on December 5, 1903, a new summons was issued in said cause by order of the court in form as an original, and on the eighth...