Lebens v. Harbeck, 46452
| Decision Date | 21 May 1976 |
| Docket Number | No. 46452,46452 |
| Citation | 308 Minn. 433,243 N.W.2d 128 |
| Parties | Melvin P. LEBENS, contestant, Appellant, v. Walter C. HARBECK, contestee, Respondent, William E. Fahey, Shakopee City Clerk, an official authorized to issue the certificates of election, Respondent. |
| Court | Minnesota Supreme Court |
Melvin P. Lebens, pro se.
Walter C. Harbeck, pro se.
Julius A. Coller, II, Phillip R. Krass and John Manahan, Shakopee, for Fahey.
Considered and decided by the court without oral argument.
This is an appeal from an order of the Scott County District Court dismissing an election contest under Minn.St. 209.02 on the ground of lack of jurisdiction. The sole issue on appeal is whether Minn.St. 645.44, subd. 5, which prohibits personal service of civil process on state holidays, applies to substituted service of notice of an election contest upon a contestee. We hold that it does and affirm.
Minn.St. 209.02, subd. 4, provides that service of a notice of contest in an election case upon the persons specified in § 209.02, subd. 3, shall be made in the same manner as service of a summons in a civil action. In a number of cases we have held that the prohibition of service of civil process on holidays applies to personal service of a summons in a civil action. Chapman v. Foshay, 184 Minn. 318, 238 N.W. 637 (1931); Farmers Imp. Co. of Hallock v. Sandberg, 132 Minn. 389, 157 N.W. 642 (1916). In view of § 209.02, subd. 4, the prohibition also applies to personal service of notice of an election contest, and the only issue is whether the service made in this case was 'personal,' or whether it was more akin to service by publication, which may be made upon a state holiday. Malmgren v. Phinney, 50 Minn. 457, 52 N.W. 915 (1892).
We believe that substituted service under Rule 4.03, Rules of Civil Procedure--that is, service upon an individual by leaving a copy at his usual place of abode with some person of suitable age and discretion then residing therein--is a form of 'personal' service. In fact, Rule 4.03 labels as personal this form of service. Also, the reason advanced for justifying the legislative prohibition of personal service on a holiday--namely, to protect people in their quiet enjoyment of a holiday without intrusion by process servers, Malmgren v. Phinney, supra,--applies as much to this type of personal service as to the so-called true form of personal service.
Because the right to contest an election is purely statutory, the provisions of the...
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State ex rel. Underwood v. Silverstein
...g., Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971); Kinzel v. City of North Miami, 212 So.2d 327 (Fla.App.1968); Lebens v. Harbeck, 308 Minn. 433, 243 N.W.2d 128 (1976); Lohmaier v. Ulster County Board of Elections, 50 A.D.2d 1055, 377 N.Y.S.2d 726 (1975); Rogers v. State Election Board......
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In re Skyline Materials, Ltd.
...provisions for service of notice must be strictly followed in order for a court to acquire jurisdiction. Lebens v. Harbeck, 308 Minn. 433, 434, 243 N.W.2d 128, 129 (1976); see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999)......
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Greenly v. Independent School Dist. No. 316, C0-86-1050
...relating to the filing and serving of notice must be strictly followed if the court is to acquire jurisdiction. Lebens v. Harbeck, 308 Minn. 433, 434, 243 N.W.2d 128, 129 (1976) (citing Petrafeso v. McFarlin, 296 Minn. 120, 207 N.W.2d 343 (1973)); Hancock v. Lewis, 265 Minn. 519, 522, 122 N......
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DiBlasio v. City of Saint Paul, No. A05-1803 (Minn. App. 6/20/2006), A05-1803.
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