Layton v. Trapp

• Decision Date: 14 February 1898
• Citation: 52 P. 208,20 Mont. 453
• Parties: LAYTON v. TRAPP, Justice of the Peace.
• Court: Montana Supreme Court

52 P. 208

20 Mont. 453

LAYTON v. TRAPP, Justice of the Peace.

Supreme Court of Montana

February 14, 1898

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Certiorari by B. F. Layton against John M. Trapp, justice of the peace to review judgment. The judgment was annulled, and the justice appeals. Affirmed.

This is an appeal from a judgment of the district court of Silver Bow county annulling, in a certiorari proceeding, a judgment rendered by a justice of the peace of Silver Bow township, in said county. It appears from the record that one Joseph Fisher recovered judgment against the relator in this case before S. H. Almon, a justice of the peace in said township on the 7th day of December, 1896. The summons issued by the justice, in the case in which said judgment was rendered, was served by one N. L. Almon, by appointment of the justice to serve the same. The order of appointment was as follows "I hereby appoint N. L. Almon a special constable at the request of ___, Plff., to serve and make return on these papers, he being a discreet person of suitable age, and not interested in this action, and I deeming it expedient. S. H Almon, J. P." The return made by said N. L. Almon is as follows: "Silver Bow Township, Silver Bow County. I do hereby certify that I received the within summons on the 1st day of Dec., A. D. 1896, and personally served the same on the 2nd day of Dec., A. D. 1896, by delivering a true copy thereof to B. F. Layton, defendant, in the county of Silver Bow, state of Montana; B. F. Layton being the defendant named in said summons. Dated this 2d day of Dec., A. D. 1896. N. L. Almon, Constable Silver Bow County." The service of the summons was not proved by the affidavit of N. L. Almon. The relator did not make any appearance in the justice's court in response to the summons, and judgment was rendered against him by default. On the 22d day of July, 1897, the relator filed his petition for a writ of review or certiorari in the district court of Silver Bow county, for the purpose of having said justice's judgment annulled and vacated, on the ground that he was never legally served with summons in the justice's court. The respondent in this case, who is the successor of the justice who rendered the judgment, made his return to the writ in the district court; and, the cause coming on to be heard, the court entered a judgment vacating and annulling the judgment of the justice in favor of said Fisher and against the relator. From this judgment of the district court this appeal is prosecuted.

D. H. Kehoe, for appellant.

Booth & Cavanaugh, for respondent.

PEMBERTON C.J. (after stating the facts).

The district court held that the proof of the service of the summons issued by the justice, and returned by N. L. Almon, the person appointed by the justice to serve the same, was not sufficient to give the justice jurisdiction to render judgment by default against the relator in the suit of Joseph Fisher against him. Section 1688, Code Civ. Proc., is as follows: "A justice may, at the request of a party, and on being satisfied that it is expedient, specially depute any proper person of suitable age, and not interested in the action, to serve a summons with or without an order to arrest the defendant, or with or without a writ of attachment or an execution. The justice shall be liable on his official bond for all official acts of the person so deputed. Such deputation shall be in writing made on the process, and a note thereof made in the justice's docket." Section 1510 of the same Code provides that service of summons in justice's court may be made "by any male resident, over the age of twenty-one years, not a party to the suit, within the county where the action is brought, and must be served and returned as provided in tit. 5, pt. 2, of this Code." Section 635, tit. 5, pt. 2, same Code, provides that when summons is served by any other than the sheriff "it must be returned to the same place, with an affidavit of such person of its service."

Counsel for appellant contends that sections 1510 and 635, supra, do not apply in this case; his contention being that a person appointed by a justice of the peace to serve a summons, under ...