Johnson v. Engelhard

• Decision Date: 21 January 1920
• Parties: JOHNSON v. ENGELHARD.
• Court: North Dakota Supreme Court

45 N.D. 11

176 N.W. 134

JOHNSON

v.ENGELHARD.

Supreme Court of North Dakota.

Nov. 8, 1919.

Rehearing Denied Jan. 21, 1920.

Syllabus by the Court.

The plaintiff, a resident of North Dakota, commenced an action against the defendant, a resident of Wisconsin, by the issuance of a summons, and after the issuance of the summons, attached certain lands of the defendant in Burleigh county, N. D. No attempt was made to publish the summons; the plaintiff sending the same to the Chief of Police of Oconomowoc, Wis., by whom it was served upon the defedant personally. No other effort was made to serve the summons or complaint upon the defendant within 60 days after the issuance of the warrant of attachment.

Held that, under the statutes referred to in the opinion, the district court of Burleigh county, N. D., in which the action was commenced, acquired no jurisdiction of the defendant, and properly dismissed the action.

The ordinary action is commenced when a summons is issued and served upon the defendant. An action is commenced in cases in which attachment is permitted when the summons is duly issued.

Personal service of a summons can only be made within the state. When it is served without the state, in cases where it is permitted by a statute to be so served, service must be made by publication.

Appeal from District Court, Burleigh County; W. L. Nuessle, Judge.

Action by J. S. Johnson against Ferdinand Engelhard. From an order dismissing the action, plaintiff appeals. Affirmed.W. L. Smith, of Bismarck, for appellant.

Miller, Zuger & Tillotson, of Bismarck, for respondent.

GRACE, J.

The plaintiff attempted to bring an action against the defendant in which he sought to recover $6,000 damages for the alleged violation of a written contract. The defendant is a resident of the city of Oconomowoc, Waukesha county, state of Wisconsin. The plaintiff's attorney issued a summons, which was served upon the defendant personally by the chief of police of Oconomowoc. The complaint was not served with the summons; the summons recited the complaint would be filed with the clerk of the district court of Burleigh county. It was dated February 14, 1919.

On the 17th day of February, 1919, plaintiff filed in the office of the clerk of the district court of Burleigh county a verified complaint in which $6,000 damages are claimed, and at the same time filed an affidavit, stating the defendant was not a resident of the state, that he was a resident of the city of Oconomowoc, Wis., and further therein stated that personal service of the summons could not, in this state, be made upon the defendant. On February 17, 1919, the plaintiff filed an affidavit of attachment. He also filed an undertaking therein in the sum of $6,000, and on that day procured a warrant of attachment, under which the sheriff of Burleigh county attempted to levy and attach certain real estate in Burleigh county, N. D., described as follows, to wit: Section 35, township 139, range 78; the E. 1/2 of the E. 1/2 of the N. W. 1/4, the N. W. 1/4 of N. W. 1/4 of N. E. 1/4, the S. 1/2 of the N. W. 1/4 of N. E. 1/4, the S. W. 1/4 of N. E. 1/4, the S. 1/2 of the S. E. 1/4 of N. E. 1/4, the E. 1/2 of S. E. 1/4, and the N. W. 1/4 of S. E. 1/4 of section 29, township 139, range 80.

The notice of the alleged attachment was filed with the register of deeds, and in it was described the land sought to be attached. The writ of attachment was not personally served upon the defendant. At the request of the attorney for plaintiff, section 35 was released from the alleged attachment. No publication of the summons was made. The plaintiff relies upon what he terms the personal service of the summons above mentioned, but which, as we shall presently see, was not personal service. No personal service of the complaint upon the defendant was made within 60 days after the filing of the affidavit for publication. The plaintiff, on the 2d day of May, 1919, more than 60 days after the warrant of attachment issued, served a copy of the complaint upon the defendant. This was, however, subsequent to the time when the defendant had procured from the court an order directed to the plaintiff to show cause on the 26th day of April, 1919, why the action sought to be commenced should not be dismissed for want of jurisdiction.

[1][2] The sole question in the case is one of jurisdiction. The plaintiff sought to get jurisdiction of the defendant by publication of the summons under section 7429, C. L. 1913, and the filing of a writ of attachment against certain land. Under section 7420 an action is commenced by the issuance and service of a summons, and jurisdiction is acquired when it is served in the manner prescribed by law.

In an action on contract or judgment for the recovery of money only, for the wrongful conversion of personal property, or for damages arising out of contract or otherwise, the plaintiff, at or after the commencement thereof, may have the property of the defendant attached, in the cases provided for in sections 7537 and 7538, C. L. 1913; and where an attachment is thus procured, an action is, in such case, deemed to be commenced from the time a summons is duly drawn and signed, with the intention that it be served. A summons, thus issued, is sufficient to support and authorize the procuring of a warrant of attachment at any time after the issuing of the summons.

In cases where attachment is permitted, and the action is deemed commenced from the issuing of the summons, and though it be conceded it is sufficient to support an attachment issued after the action has been so commenced, no jurisdiction of the defendant is obtained unless the summons is served upon him. The statutes provide the manner in which the summons may be served, which is by personal service thereof, in accordance with the provisions of the statute defining personal service, or service by publication, in accordance with the statute in cases where publication is permitted.

In this case the plaintiff has done neither. The defendant, at the time the action was commenced, was a resident of the state of Wisconsin. The only method by which the plaintiff could subject defendant to the jurisdiction of the courts of this state was by commencing an action by the issuance of a summons, attaching his property within this state, following this with a due and legal publication of the summons, and thereafter serving the summons and complaint upon the defendant in the manner prescribed by law, or, after a proper affidavit of publication made, by making personal service of the summons within 60 days after the issuance of the warrant of attachment. The mere issuing of the summons, and thereafter the writ of attachment, and the filing of the notice of attachment in the office of register of deeds, and thereafter the service of the summons personally upon the defendant in Wisconsin, without first having complied with the requirement of the law as to publication up to the point where everything required for the publication of the summons is done, except the publication thereof, would not bring the defendant within the jurisdiction of the court.

We are dealing with the question of substituted service; the manner in which such service may be made is prescribed by statute. When substituted service is sought, the steps to be taken and rules to be followed are those prescribed by the statute, and it is only by following such statutory rule that jurisdiction may be obtained of the person in cases where substituted service is permitted, and is applicable.

Section 7431, C. L., reads thus:

“After the affidavit for publication and the complaint in the action are filed, personal service of the summons and complaint upon the defendant out of the state shall be equivalent to and have the same force and effect as the publication and mailing provided for in this chapter.”

Under this section, each and every step required to be taken, if the summons were to be published, must also be taken to the point of publication before the personal service is mentioned, is permissible. Unless all of such steps are taken, the personal service thus authorized, does not become equivalent nor have the same force and effect as the publication of the summons and the mailing of the summons and complaint in the manner provided for service by publication.

Section 7432, C. L., reads thus:

“The first publication of the summons or personal service of the summons and complaint upon the defendant out of the state must be made within sixty days after the filing of the affidavit for publication; if not so made, the action shall be deemed discontinued.”

This action refers to cases in which there is no attachment issued.

Section 7539, C. L., reads thus:

“Within the meaning of the last two sections an action shall be deemed commenced when the summons is issued, but personal service of such summons must be made or publication thereof commenced within sixty days after the issuance of the warrant of attachment.”

The other sections referred to in the latter section are 7537 and 7538, which set forth the cases in which attachment may be issued. The personal service mentioned in this section is governed by the statutes relative to substituted service by publication. All of the things required to be done for service by publication are, under this section, required also to be first done, where the personal...