Ramsdell v. Duxberry

• Decision Date: 22 July 1903
• Citation: Ramsdell v. Duxberry, 17 S.D. 311, 96 N.W. 132 (S.D. 1903)
• Parties: H. A. RAMSDELL, Plaintiff and, v. HARTWELL DUXBERRY, Defendant and.
• Court: South Dakota Supreme Court

17 S.D. 311

96 N.W. 132

H. A. RAMSDELL, Plaintiff and,

v.

HARTWELL DUXBERRY, Defendant and. South Dakota Supreme Court Appeal from Circuit Court, McCook County, SD Hon. Joseph W. Jones, Judge Former decision affirmed J. N. Crow, J. L. Hannett Attorneys for appellant. E H. Wilson Attorney for respondent. Opinion filed July 22, 1903 (See 14 SD 222, 85 NW 221)

HANEY, P. J.

The questions presented by this appeal are stated in our former decision, Ramsdell v. Duxberry,(1901). The views therein expressed are adhered to, except as to the conclusion that the lower court was without jurisdiction because no summons in the action was actually issued. The court not only had authority to hear and determine the class of controversies to which the one presented by the pleadings belonged, but it had authority to hear and determine that particular controversy, provided the parties to be effected by its judgment had proper notice of the hearing. There was no want of jurisdiction as to the subject matter, the only question being as to the jurisdiction of the parties. In this state civil actions are commenced by the service of a summons. Comp. Laws 1887, §4892.

“From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.”

Id. § 4904. In this case there was certainly a voluntary appearance of the defendant, which in the plain language of the statute, was “equivalent to the service of the summons upon him.” In other words, by reason of defendant’s voluntary appearance, a summons was, in law, personally served, and the action was, by operation of law, thereby commenced. The whole of anything embraces all of its parts. If a voluntary appearance is equivalent to personal service of a summons, it is...