Sanford v. Edwards

• Citation: 47 P. 212,19 Mont. 56
• Parties: SANFORD et al. v. EDWARDS.
• Decision Date: 21 December 1896
• Court: Montana Supreme Court

47 P. 212

19 Mont. 56

SANFORD et al. v. EDWARDS.

Supreme Court of Montana

December 21, 1896

Appeal from district court, Lewis and Clarke county; H. R. Buck Judge.

Action by John B. Sanford and others against Mary Edwards. Judgment for plaintiffs. Defendant appeals. Reversed.

It appears from the record and pleadings in this case that on March 4, 1887, plaintiffs recovered judgment against the defendant before a justice of the peace for the sum of $298.99 and costs. This is an action commenced in the district court to recover judgment on the judgment rendered before said justice of the peace. The complaint in this case alleges that by mistake the name of the defendant in said justice's court was given as "Ada" Edwards instead of "Mary" Edwards, but that Mary Edwards was and is the real defendant in said action before said justice, and that summons in said justice's court was served upon Mary Edwards, and judgment rendered against her as the real defendant in said cause before said justice. The defendant filed a general demurrer to the complaint, which was overruled. The answer denies the indebtedness sued for in the justice's court; alleges defendant's real name is "Mary" and not "Ada," Edwards; that the summons issued in the case by the justice of the peace was directed to Ada Edwards as defendant; and that on the 28th day of February, 1887, the constable served a copy of said summons upon this defendant, but did not read the same to her. The answer sets up the return of the constable, which is as follows: "I hereby certify that I received the within summons on the 28th day of February, Anno Domini 1887, and personally served the same on the 28th day of February, Anno Domini 1887, upon Ada Edwards, being the defendant named in said summons, by delivering to said defendant personally, in the said county of Lewis and Clarke, a copy of said summons." Defendant, in her answer, alleges that judgment was rendered in said justice's court against Ada Edwards on the 4th day of March, 1887, and that said judgment is null and void, for the reason that said justice of the peace never acquired jurisdiction to render the same against the defendant; that this defendant never appeared in said justice's court; and that judgment entered therein was by default against this defendant as "Ada Edwards." The replication to the answer alleges that the constable served the summons upon the defendant by delivering a copy thereof to her at her place of residence, in the county of Lewis and Clarke, state of Montana, and alleges on information and belief that it was delivered to her at her place of residence. Thereafter the defendant moved the court for judgment on the pleadings, which motion was overruled by the court. The case was tried to the court without a jury. On the trial the constable, White, was introduced, and over the objection of the defendant was permitted to testify, and did testify, that he served the summons issued by the justice of the peace upon the defendant by delivering a copy of it to her at the front door of her residence. The defendant, at the close of the plaintiffs' testimony, moved the court for a nonsuit, on the ground that the judgment sued on was void which motion was overruled. The court made certain findings of fact in favor of plaintiffs, and rendered judgment as prayed for against the defendant. This appeal is from the judgment, and from an order refusing a new trial.

Henry C. Smith and T. J. Walsh, for appellant.

M. Bullard, for respondents.

PEMBERTON C.J. (after stating the facts).

The first question presented by this appeal is as to whether the constable's service of the summons issued by the justice was void. If the service of the summons was void, then it will not be disputed that the judgment of the justice, on which this suit is brought, was and is void also, as well as all proceedings thereunder. Section 744, Code Civ. Proc. (Comp. St. 1887), in force at the time of the service of the summons in question, and which must govern in the determination of the case, after prescribing the manner of service of summons on corporations, minors, persons of unsound mind, etc., in subdivision 4 provides for service of summons in cases like the one under discussion, as follows "In all other cases, by reading the same to the defendant personally, or by leaving a copy at his place of residence." It is conceded that in this case the constable did not read the summons to the defendant personally. In Brown, Jur. p. 110, § 41, it is said: "When the statute provides the form of service or mode of obtaining it, that mode must be pursued strictly." Statutes prescribing the manner of service are mandatory, not directory. Wells, Jur. § 97; Freem. Judgm. (4th Ed.) § 125. In Robbins v. Clemmens, 41 Ohio St. 285, under a statute requiring service to be made by delivering a copy, service was made by reading the summons to the defendant. The court held the service void, and that a judgment rendered...