In re Big Laramie River

• Citation: 153 P. 890,23 Wyo. 450
• Decision Date: 23 December 1915
• Docket Number: 781
• Parties: IN RE. BIG LARAMIE RIVER. v. AKIN ET AL PIONEER CANAL CO.
• Court: United States State Supreme Court of Wyoming

153 P. 890

23 Wyo. 450

IN RE. BIG LARAMIE RIVER.

PIONEER CANAL CO. v. AKIN ET AL

No. 781

Supreme Court of Wyoming

December 23, 1915

ERROR to the District Court, Laramie County; HON. RODERICK N MATSON, Judge.

On rehearing on motions to quash service and dismiss. For former opinion, see 23 Wyo. 75, 147 P. 169, which is overruled. In that report will be found an abstract of the briefs on the original hearings had on the motions.

Proceeding overruled.

Corthell McCullough & Corthell, for plaintiffs in error on petition for rehearing on the motions.

The motions should not have been sustained upon the authority alone of Bechtold v. Fisher, 12 O. Cir. Ct. 559. The decision appears to turn upon the expression "therein named" and we believe the interpretation placed thereon is not justified by the statute. We believe it refers to a day to be named in the summons. The quotation from Nash on Pleading and Practice, 1243, appears to be an interpretation placed on the statute by the author, who seemed dissatisfied with its language. The term appears frequently in other sections of the statute relating to writs, in which connection it was used with reference to the writ and never with reference to anything else. Sections 4356, 4475, 4766, 4931, 5007, 5027, 5111, 5195, 5263, Comp. Stats., and substantially the same language is employed in more or less similar connections in Sections 4352, 4367, 4425, 4538 (subdivisions 6 and 8), 4544, 4569, 4693, 4741, 4743, 4787 4831 and 5277. It is submitted that the construction adopted by us is the more grammatical one, and that the adverbial term therein is referable normally and naturally to the last antecedent term or the pronoun "it" rather than the parenthetical expression "term time." Statutes are to be read and understood primarily according to their grammatical sense, unless it is apparent that the author intended something different. (Sutherland Stat. Cons., Sec. 258.) The rule of construction applied in the interpretation of a contract in the case of Snow v. Duxstad, 147 P. 174, is applicable here. The sixty-day limitation for the completion of service with an unsuccessful attempt to commence an action in the district court is plainly inapplicable to the proceedings in this court. A defective issuance and service of summons voidable, but not void, will not deprive the court of jurisdiction (Clause v. Savings Association, 16 Wyo. 450), and the service may be completed under Section 3465, R. S. (4306 C. S.), and relate back to the date of the original summons. (Id. 469 and 470.) A liberal construction of the code is required. (Sec. 4263, Comp. Stats. 1910.) Liberal amendments are allowed. (Sec. 4437, Comp. Stats. 1910.) Defects not affecting substantial rights must be disregarded. (Sec. 4438, Comp. Stats. 1910.) The doctrine applies generally to process. (25 Cyc. 1075-1076; Lassiter v. Carroll (Pa.), 13 S.E. 824.) Numerous instances of defects held as not jurisdictional are presented by the cases. Service on a guardian instead of a ward. (Cortelou v. Whitley, 85 Ala. 247, 4 So. 610.) Wrong date in summons. (Chicago D. Co. v. Kinzie, 93 Ill. 415.) Omission of year in return date. (Greeg v. Thompson, 17 Iowa 107.) Erroneous rendition of money judgment, where summons did not notify defendant, money judgment claimed. (Blair v. Wolfe, 72 Iowa 246, 33 N.W. 668.) Failure to read or deliver copy of summons. (Loungeville v. May, 115 Ia. 709, 87 N.W. 432.) A return date of January, 1883, in a summons issued in December, 1883. (Kelley v. Harrison, 69 Miss. 856, 12 So. 261.) Service by reading instead of by delivery. (Gaudy v. Jolly, 35 Neb. 711, 53 N.W. 658.) Wrong name in return. (Hanson v. Franklin, 19 N.D. 259, 123 N.W. 386.) Difference between affidavit and notice in constructive service. (Moore Realty Co. v. Carr, 120 P. 742.) Citation without a seal. (Moore v. Perry, 13 Tex. Civ. App. 204, 35 S.W. 838.) Returnable sixteen days instead of twelve days. (Morris v. Healey Lumber Co. (Wash.), 74 P. 662.) Service in May, 1909, of summons dated July, 1908, returnable first Tuesday of October next, held irregular and non-jurisdictional. The error must be so radical as to admit a collateral attack upon the judgment rendered in the action, in order to defeat jurisdiction. (Brock v. Francis (Kan.), 131 P. 1179.) The defect found by the court in the case at bar is one to which no objection was taken in either of the motions of Wyoming Development Company. The defect, if any, is that the writ was served after the time when the same could legally and properly be served. This is not jurisdictional. (Meisse v. McCoy's Admr., 17 O. S. 225.) In that case the time for commencing the action expired June 28th, 1864. Summons was issued June 23rd, 1864, and served July 4th following, which was the return day. The service was quashed by order in November, 1864. Alias summons issued on February 24th, 1864; Statute of Limitation was pleaded; held, that the issuance and service of the first summons constituted a commencement of the action and that while the service was irregular and was properly quashed in the court below, the effect was not jurisdictional, and that the subsequent proceedings related back to the original proceedings. (Followed in Armstrong v. Grant, 7 Kan. 286.) Service after the return is an irregularity and not jurisdictional. (Ballinger v. Roberts (Tex.), 148 S.W. 841.) The Ohio case in principle controls the present proceedings. (Worster v. Oliver, 4 Ia. 345.) A return day fixed on the second Monday instead of the first of the term is a mere irregularity and not jurisdictional. (Sweatman v. Dean, 86 Miss. 641, 38 So. 231.) Ten days' notice where statute required twenty, not jurisdictional. (Griffin v. McGavin, 117 Mich. 372, 75 N.W. 1061.) Service less than the required number of days, is not ground for collateral impeachment of judgment. (Ballinger v. Tarbell, 16 Ia. 491. See also Leonard v. Sparks, 117 Mo. 103, 22 S.W. 899.) Entry of judgment on same day as issuance of summons, not jurisdictional. (Friebe v. Elder, 105 N.E. 151.) Returnable within less than the statutory time is neither void nor voidable. (Clough v. McDonald, 18 Kan. 114; Swersberger v. State, 21 Kan. 475.) Alias and pluries writs are substitutes or continuations, and relate back to the original writ. (American Central Ins. Co. v. Haws, 11 A. 107; Fire and Marine Ins. Co. v. Vaughan, 14 S.E. 754; St. Louis A. & T. R. Co. v. Shelton, 21 S.W. 876; Fallen v. Ferris, 2 Wyo. 141; Baca v. Anaya, 89 P. 314; Steves v. Carson, 40 P. 569; Walnut v. Newton, 32 A. 317; Dayton v. Lach, 94 U.S. 112.) The rights involved are so important to the parties that we believe the controversy should not be disposed of by the interpretation which may be placed upon the word "therein" in a statute regulating appellate procedure, unless the court finds that there is absolutely no escape from such a conclusion.

John D. Clark, for Wyoming Development Company, contra.

Counsel has failed to state the final rule to which his argument logically leads, viz., that when summons in error is issued after the adjournment of the term it may, at the option of the plaintiff in error, be made returnable at any date in the remote future, manifestly an absurd situation for which we find no support by rule or statute, but immersed in so much doubt as to require more convincing argument to sustain it than a reference to rules of grammar or the off-hand opinion of the "man in the street." Section 5111, Comp Stats. 1910, requires a summons in error if issued in vacation to be made returnable on or before the first day of the ensuing term, yet it is contended that if the summons is issued before the adjournment of the term it may be made returnable after the first day of the succeeding term; in other words the court is asked to adopt a construction of the statute whereby the Legislature will be declared to have provided that while a summons issued at a very late date in the term must be made returnable within a very short time--on the other hand a summons issued early in the term may be made returnable at any date, no matter how remotely distant. We do not believe that it was so intended by the Legislature. The word "therein" as used in the section or any other sections referred to by counsel affords small assistance in construing the legislative intent. Section 5111 really contains two expressions and the word may refer to either. The rule contended for is at variance with the rule established for filing briefs in this court, in which rule time is computed from the date of filing the petition in error, 105 days in all, and it cannot be supposed that this court intended that a defendant should be required to file his brief before he was served with a summons in error. Yet if the return day of a summons in error may be fixed on a date overlapping the period fixed by the rule, as to briefs, that would be the result. The rule contended for is also inconsistent with various statutes enumerating steps in appellate procedure, all apparently intended to secure an early determination of litigation. Can it be reasonably supposed that the Legislature intended that there should be no limit placed upon time within which a summons in error shall be returnable and thus defeat the purpose of all other statutes for the expedition of litigation. We renew our contention, which was in fact sustained by the court in its opinion, that irrespective of the form of the summons, a proceeding in error cannot be commenced, unless service is had upon defendant in error within sixty days after the expiration of the year. The rule is derived by analogy from Section 4306, Comp. Stats. 1910, and sustained by Bechthold v. Fisher, 12 O. Cir. C. 559. Of course, Secs. 4305 and 4306 are not made expressly applicable to error...