Reader v. District Court of Fourth Judicial District In And for Uintah County
Decision Date | 17 October 1939 |
Docket Number | 6139 |
Citation | 98 Utah 1,94 P.2d 858 |
Court | Utah Supreme Court |
Parties | READER v. DISTRICT COURT OF FOURTH JUDICIAL DISTRICT IN AND FOR UINTAH COUNTY et al |
Original proceeding in certiorari by J. Harold Reader against the District Court of the Fourth Judicial District in and for Uintah County, State of Utah, and N. J. Meagher, to review a foreclosure proceeding in which the trial court entered a decree of foreclosure against certain property and granted a deficiency judgment in favor of N. J. Meagher against J Harold Reader and others.
Judgment ordered vacated and set aside and cause remanded.
Thomas & Thomas, of Salt Lake City, for plaintiff.
Mary Alice Meagher, of Salt Lake City, for defendants.
This case is here on a writ of certiorari issued by this court to the district court of the Fourth Judicial District, and N. J. Meagher, to review a foreclosure proceeding in which the lower court entered a decree of foreclosure against certain property and granted a deficiency judgment in favor of N. J. Meagher and against J. Harold Reader and others. Defendant, N. J. Meagher has failed to file a brief herein. The facts are as follows:
N. J. Meagher was the holder of seven promissory notes, each dated November 1, 1920, and totaling $ 50,000. J. Harold Reader, plaintiff in this case, Ray H. Reader, and J. H. Reader, signed as co-makers. On November 29, 1921, approximately one year later, the Sunshine Ranch Company, a Utah corporation, gave as security on the notes, a mortgage on its real estate. Meagher brought suit on the notes in the district court. He sought to foreclose the mortgage and asked for a deficiency judgment against the makers. A judgment for the sum of $ 76, 260.20 was entered on November 19, 1937, together with a decree of foreclosure, providing for a deficiency judgment in the event the proceeds of the sheriff's sale were insufficient to satisfy the judgment.
The sale of the property resulted in a deficiency of $ 51,275 and on January 8, 1938, judgment for this amount was docketed against the Sunshine Ranch Co., J. Harold Reader, plaintiff herein, and Ray H. Reader, one of the co-makers, J. H. Reader, the remaining co-maker, having died.
It is the contention of plaintiff that the judgment and decree of the lower court are a nullity for the reason that the service of summons on the Sunshine Ranch Company was insufficient to confer jurisdiction on the court. The defendants in the mortgage foreclosure action did not appear and judgment was entered against them by default. If the court did not acquire jurisdiction over the corporation the judgment is void.
Revised Statutes of Utah 1933, Section 104-5-11, as far as applicable to this case, provides as follows:
"The summons must be served by delivering a copy thereof as follows:
* * * *
(Italics added.)
Summons in due form was issued upon the complaint and delivered to the sheriff of the county for service. The manner of making service, as shown by the sheriff's return, was as follows:
Plaintiff challenges the sufficiency of the service upon two grounds: (1) That the return does not state that the corporation was served, but shows that J. Harold Reader, its secretary, was attempted to have been served; and (2) that the service was not in accordance with the provisions of Revised Statutes of Utah 1933, Sec. 104-5-11 (5), as set out above.
In sustaining the second contention, it will not be necessary to pass upon the merits of the first.
In 21 R. C. L., page 1335, Sec. 85, is found the following rule as to service on a corporation:
* * *"
A strict compliance with the statute is necessary to confer jurisdiction of the court over a corporation. 6 Bancroft, Code Pr. & Rem., p. 5911, states the rule:
"The method of service prescribed is exclusive and must be followed."
In the case of Boston Acme Mines Development Company v. Clawson, 66 Utah 103, 240 P. 165, 173, this court adopted the same rule in the following statement:
"The agent upon whom service is made must be such as is named in the statute; otherwise the service is insufficient."
There can be no question but that the sheriff sought to serve the corporation by serving its secretary, J. Harold Reader. The return of the sheriff, above quoted, indicates such an intention. The return also indicates a failure on the part of the sheriff to serve Reader, but does show that the service was made on one Ella Reader, wife of the secretary. No such service was contemplated by the statute.
In Boston Acme Mines Development Co. v. Clawson, supra, the case of Settlemier v. Sullivan, 97 U.S. 444, 24 L.Ed. 1110, is approved by this court:
...
To continue reading
Request your trial-
Gibbons & Reed Co. v. Standard Accident Insurance Co.
...class under Rule 4(e) (4), supra, it must be shown that service upon a member of the superior classes cannot be had. Reader v. District Court, 1939, 98 Utah 1, 94 P.2d 858; Boston Acme Mines Development Co. v. Clawson, 1925, 66 Utah 103, 240 P. 165. Defendant's very position assumes that se......
-
Murdock v. Blake
...P.2d 440, 448 (1965).2 Utah Sand & Gravel Products Corp. v. Tolbert, 16 Utah 2d 407, 409, 410, 402 P.2d 703 (1965).3 Reader v. District Court, 98 Utah 1, 94 P.2d 858 (1939); Boston Acme Mines Development Co. v. Clawson, 66 Utah 103, 123, 124, 127, 240 P. 165 (1925); Gibbons & Reed Co. v. St......
-
Schweppes U.S. A. Limited v. Kiger
...301, 9 S.Ct. 530, 32 L.Ed. 946 (1889); Biaett v. Phoenix Title & Trust Co., 70 Ariz. 164, 217 P.2d 923 (1950); and, Reader v. District Court, 98 Utah 1, 94 P.2d 858 (1939). In the instant case the purchase of the tonic water was made in Maryland, not in this state; the injury occurred and t......
-
Dunlap v. Stichting Mayflower Mountain Fonds
...property was not a party to the action; hence the decree of foreclosure was void and of no effect ...."); see also Reader v. District Court, 98 Utah 1, 94 P.2d 858, 861 (1939) (quoting ¶ 14 This rule is applicable here. Because New Park-Nevada was not properly named and joined as a party, t......
-
Compensating wage differentials and the optimal provision of unemployment insurance.
...Nevada 0.97 New Mexico 0.96 New York 1.00 North Carolina 1.01 Oklahoma 0.97 Oregon 0.96 Rhode Island 1.01 South Carolina 1.00 Tennessee 0.98 Utah 1.00 Vermont 1.01 Virginia 1.00 Washington 0.97 West Virginia 0.92 Wyoming 0.94 VI. Almost since its inception in 1935, the federal-state unemplo......