McKnight v. Grant

• Decision Date: 25 November 1907
• Parties: H. B. MCKNIGHT, Respondent, v. SCHUYLER GRANT, Trustee, Appellant
• Court: Idaho Supreme Court

92 P. 989

13 Idaho 629

H. B. MCKNIGHT, Respondent, v. SCHUYLER GRANT, Trustee, Appellant

Supreme Court of Idaho

November 25, 1907

JUDICIAL POWER OF THE STATE-JURISDICTION OF PROBATE JUDGE-JURISDICTION OF PROBATE COURT-PUBLICATION OF SUMMONS-ORDER FOR PUBLICATION OF SUMMONS-AUTHORITY TO MAKE SUCH ORDER-MISNOMER OF PLAINTIFF IN PUBLISHED SUMMONS-VARIANCE AND MISTAKE IN SUMMONS AS PUBLISHED-SHOWING OF DUE DILIGENCE-NONRESIDENT DEFENDANT.

1. Neither section 13 nor section 21 of article 5 of the constitution prohibits the legislature from authorizing and empowering a probate judge to make an order for the publication of summons in a case pending in the district court involving a sum or controversy over which the probate court has no jurisdiction.

2. Section 4145 of the Revised Statutes, which authorizes a probate or district court to make an order for the publication of summons upon showing of certain facts by affidavit, is not in conflict with the constitution on account of its authorizing a probate judge to make the order for publication in a case not pending in his court.

3. Section 13 of article 5 of the constitution which prohibits the legislature from depriving the judicial department of the state government of any power or jurisdiction that rightfully pertains to it was intended only to preserve to the judicial department of the state the right and power to finally determine controversies between parties involving their rights and upon whose claims some decision or judgment must be rendered or determination made, or rather to determine controverted questions.

4. The statement contained in a summons as to the time within which the defendant was required to appear and answer, examined and held to be a sufficient compliance with the requirements of subdivision 3 of section 4140 of the Revised Statutes.

5. Where plaintiff's true name as appeared in the summons and complaint was "H. B. McKnight," and the name appeared correctly in the copy of summons and complaint mailed to the defendant, but in the summons as published the name appeared as "H. B. Knight": Held, that the mistake was not fatal to the jurisdiction and that a judgment by default entered thereon is not void on account of such mistake.

6. Where in the publication of a summons the word "filed" was omitted from the following sentence "You are hereby noti- fied and required to appear in the above-entitled court in the above-entitled cause and answer the complaint of the plaintiff filed herein": Held, that the error or omission is not such a variance as to be fatal to the jurisdiction in a case where the copy of the summons and complaint mailed to the defendant were correct.

7. Where a plaintiff makes affidavit for the publication of a summons and shows unequivocally by his affidavit that the defendant resides out of the state at the time of the making of the affidavit, and has resided out of the state for a long time prior thereto, and that he is not within the state and does not reside within the state, it is unnecessary for him to show that he has exercised any further diligence in an attempt to find the defendant within the state.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District, for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Action by plaintiff to recover from the defendant a sum of money and service had by publication; defendant specially appeared and moved to quash the summons, and service thereof. His motion was denied, and judgment was entered against him. Appeal from the judgment. Affirmed.

Judgment affirmed with costs in favor of the respondent.

C. H Lingenfelter, and W. H. Smiley, for Appellant.

Section 4145, Revised Statutes of 1887, which confers upon the probate judges of the state of Idaho the judicial power of granting an order for the service of a summons by publication, is unconstitutional and void, in so far as it affects causes which are within the exclusive constitutional jurisdiction of the district courts of the state of Idaho and any order granted by the probate judge of the state of Idaho for the service of a summons by publication in a cause which is within the exclusive constitutional jurisdiction of a district court of the state of Idaho is void; and does not confer upon such district court jurisdiction over the person of the defendant for any purpose.

It will appear from a comparison of the statute of California (3 Deering's Ann. Codes and Stats. of Cal., sec. 412), with that of Idaho that the legislature of Idaho in framing section 4145, Revised Statutes, has simply copied the California statute, and interpolated into the copy the words, "or a probate judge."

In granting the order, the court or judge acts judicially, and can know nothing about the facts upon which the order is to be granted, except from the affidavit presented by the applicant. (Ricketson v. Richardson, 26 Cal. 154; Mills v. Smiley, 9 Idaho 325, 76 P. 783.)

A party cannot be bound by a delegated exercise of judicial power, whether the delegation be by the courts or by legislative act devolving judicial duties on ministerial officers. Proceedings in such a case would be void. (Cooley's Constitutional Limitations, 6th ed., p. 504; Hall v. Marks, 34 Ill. 358; Chandler v. Nash, 5 Mich. 409; Winchester v. Ayres (Iowa), 4 Greene, 104; Wright v. Boon, 2 Greene, 458; Michales v. Hine (Iowa), 3 Greene, 470; Smith v. Frisbie, 7 Iowa 486.)

Acts creating courts of limited jurisdiction are construed strictly, and the powers of such courts will not be extended by implication further than is necessary for the exercise of the jurisdiction expressly conferred upon them. And if the jurisdiction is constitutional, the legislature has no power to enlarge or abridge it at all. (Dillard v. Noel, 2 Ark. 449; Meyer v. Kalkman, 6 Cal. 582; Parsons v. Water Co., 5 Cal. 43, 63 Am. Dec. 76; Commonwealth v. Allegheny County, 37 Pa. 237; State v. Northern Cent. R. Co., 18 Md. 193; Heath v. Judge, 37 Mich. 372; Averill v. Perrott, 74 Mich. 296, 41 N.W. 929; Vail v. Dinning, 44 Mo. 210; Landers v. Staten Island R. Co., (N. Y.), 14 Abb. Pr., N. S., 346; Callanan v. Judd, 23 Wis. 343; Connors v. Gorey, 32 Wis. 518; Galsworthy v. Durrant, 8 W. R. 594; 23 Am. & Eng. Ency. of Law, 1st ed., 406, 407.)

The service of a summons by publication without an order of the court or a judge thereof directing such service, is void. (People v. Pearson, 76 Cal. 400, 18 P. 424; Galpin v. Page, 18 Wall. 350, 21 L.Ed. 959.)

The requirement that the summons must be directed to the defendant is mandatory; and a judgment and execution upon such summons are likewise void for want of jurisdiction of the defendants. (Alexander v. Leland, 1 Idaho 425.)

The requirement that the summons must be issued under the seal of the court is also held to be mandatory; and that a judgment based upon a summons not attested by the seal of the court is void. (Choate v. Spencer, 13 Mont. 127, 40 Am. St. Rep. 425, 32 P. 651, 20 L. R. A. 424.)

The alias summons omits the last mandatory requirement of subdivision 3 of section 4140 of the Revised Statutes of Idaho of 1887, and substitutes in its place a mere invention of the respondent. As published, it fails to give the names of the parties to the action; which not only renders the service of the summons void, but also renders void all proceedings which are based thereon. (Alexander v. Leland, 1 Idaho 425.) It does not state that the complaint has been filed, and, therefore, does not name the court in which the action is brought.

The affidavit is fatally defective in that it fails to state any probative facts showing the respondent had exercised due diligence in endeavoring to obtain personal service of process upon the appellant. (Forbes v. Hyde, 31 Cal. 342.)

A radically defective publication of a summons renders all proceedings void. (People v. Pearson, 76 Cal. 400, 18 P. 424; People v. Mullan, 65 Cal. 396, 4 P. 348; Hyde v. Redding, 74 Cal. 493, 16 P. 380; Schissel v. Dickson, 129 Ind. 139, 28 N.E. 540; Little v. Currie, 5 Nev. 90; O'Malley v. Fricke, 104 Wis. 280, 80 N.W. 436; 40 Am. Dig., Cent. ed., pp. 2673, 2674.)

The summons must be properly published. (Sharp v. Daugney, 33 Cal. 505.)

The summons must contain all that is required by statute, whether deemed needful or not. (Ward v. Ward, 59 Cal. 139.)

I. N. Smith, for Respondent.

The complaint was filed May 23, 1905, and a true copy of this complaint was mailed to the defendant, together with a true copy of the alias summons, and true copy of the alias summons did contain the word "filed" in it, which was omitted only from the published copy. The copy of the complaint contained also the filing marks, or it could not have been a true copy. This being true, the omission of the word "filed" from the published copy of the alias summons could not affect a substantial right of the defendant, and, under section 4231, Revised Statutes of Idaho the court must disregard immaterial defects.

As to the misnomer of the plaintiff in the original complaint, a copy of which was mailed by registered letter, the name of plaintiff is H. B. McKnight; in the original alias summons, the name of plaintiff was properly inserted, and in the copy of summons as mailed; in the published copy, the printer printed the name H. B. Knight.

The provisions of section 4146, Revised Statutes of Idaho which in the case of a nonresident defendant, whose residence is known, require a service by publication, as well as a service by mail, in effect constitute a provision for double service.

A mere irregularity does not render the service void. (Martin v. Lindstrom, 73 Minn. 121, 75 N.W. 1038.)

If the ordering of a publication of summons is such a judicial act that it cannot be delegated, then...