Rowenhorst v. Johnson

• Decision Date: 03 June 1925
• Docket Number: 5767
• Citation: 204 N.W. 173,48 S.D. 325
• Parties: ANITA M. ROWENHORST, Plaintiff and respondent, v. PAULINE JOHNSON et al, Defendants and appellants.
• Court: South Dakota Supreme Court

48 S.D. 325

204 N.W. 173

ANITA M. ROWENHORST, Plaintiff and respondent,

v.

PAULINE JOHNSON et al, Defendants and appellants. South Dakota Supreme Court Appeal from Municipal Court of Sioux Falls, SD Hon. Ransom L. Gibbs, Judge #5767--Affirmed E. E. Sullivan, Sioux Falls, SD Attorneys for Appellants. Johnson & Simons, Sioux Falls, SD Attorneys for Respondent. Opinion filed June 3, 1925

CAMPBELL, J.

Action for unlawful detainer of realty and for rent against the defendants as mortgagors in possession after foreclosure of plaintiff's mortgage, sale, expiration of period of redemption and issuance of sheriff's deed to plaintiff. Judgment for plaintiff for possession of the premises and certain rentals, and defendants appeal.

It appears from the record that a notice to quit, as provided by section 2172, Rev. Code 1919, was duly served on the defendants, but such notice was not filed with the clerk of the municipal court where the action was instituted before the summons was issued or served.

Appellants' sole contention on this appeal is that the return and filing of such notice to quit with the justice or clerk of the municipal court, as the case may be, is a jurisdictional prerequisite to the issuance and service of summons under section 2172, Rev. Code 1919.

We are of the opinion that by virtue of section 2172, Rev. Code 1919, the service of the notice to quit is jurisdictional, but not the return and filing thereof, and that the last clause of the section, "and may be served and returned in like manner as a summons is served and returned," is permissive, and not mandatory.

It is the general rule, and one which has been recognized by this court, that the word "may" when used in a statute is permissive only. Henry v. Meade County Bank, 148 N.W. 626.

We realize that our present holding on this point is contrary to an apparent holding of this court in the case of Northwestern Loan & Banking Co. v. Jonasen, on rehearing, 12 SD 618, 82 N.W. 94.

An analysis of the Jonasen case, however, shows that the statement as to this particular point was entirely obiter dictum. This is noted by the Supreme Court of North Dakota in construing their statute on this matter, which is identical with our own and from the same source. It was contended in the North Dakota case that the justice never acquired jurisdiction because the notice to quit was not filed with him at or before the issuance of summons, and the Jonasen case was cited. The court, however, adopted the view expressed in this opinion that there was no statutory requirement that the notice must be filed before issurance of summons, and that it was the giving of the notice and not the filing thereof which was jurisdictional, and said, in comment on the Jonasen case:

"The sole question in that case was whether the notice to quit must necessarily be offered in evidence, and it was held that, on filing of the sante with the justice, it became a part of the record. What is there said concerning the necessity of filing the notice before the justice could acquire jurisdiction does not pertain to the point involved and decided."

McLain v. Nurnberg, 112 N.W. 243.

An examination of the history of the statute in question confirms us in our present opinion. As pointed out by Judge Tripp in Murry v. Burris, 6 Dak. 170, this particular section was taken from Iowa.

A forcible...