State ex rel. Kalich v. Bryson

• Jurisdiction: Oregon
• Parties: STATE of Oregon ex rel. Hugh KALICH and Robert Spencer, Relators, v. Dean BRYSON, Circuit Judge, Defendant. . Argued and Submitted on Defendant's Amended Answer to Alternative Writ
• Citation: State ex rel. Kalich v. Bryson, 453 P.2d 659, 253 Or. 418 (Or. 1968)
• Court: Oregon Supreme Court
• Decision Date: 08 October 1968

Page 659

453 P.2d 659

253 Or. 418

STATE of Oregon ex rel. Hugh KALICH and Robert Spencer, Relators, v.Dean BRYSON, Circuit Judge, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted on Defendant's

Amended Answer to Alternative Writ Oct. 8, 1968.

Decided April 16, 1969.

Edwin J. Peterson and Paul R. Duden, Portland, argued the cause for plaintiffs.With them on the brief were Tooze, Powers, Kerr, Tooze & Peterson, Portland.

Leo R. Probst, Portland, argued the cause for defendant.With him on the brief were Carney & Haley, Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

O'CONNELL, Justice.

This is an original proceeding in mandamus to require defendantDean Bryson circuit judge for Multnomah County, to vacate his order denying relators' motion to quash a summons and the service and return thereof, and allowing the plaintiff's motion to amend the summons.

Relators are domiciliaries of the state of Washington.A complaint was filed against them in the circuit court for Multnomah County alleging a commission of a tortious act on May 13, 1965.The complaint was filed on May 11, 1967, and according to the return of service filed on May 22, 1967 the summons was issued and personally served on relators in Washington on the same day.

The summons was in the following form:

'IN THE NAME OF THE STATE OF OREGON: You are hereby required to appear and answer the complaint filed against you in the above-entitled action within ten days from the date of service of this summons upon you, if served within this county; or if served within any other county of this state, then within twenty days from the date of the service of this summons upon you; and if you fail so to answer for want thereof, the plaintiff will take judgment against defendants and each of them in the amount of $35,000 general damages, $210 special damages for medical care and treatment and further sum of $1500 special damages for the loss of profits in the operation of his business and for his costs and disbursements incurred herein.'

Relators appeared specially on May 25, 1967 and moved to quash the summons, arguing that it was void since it failed to designate a time for appearance applicable to those served outside the state of Oregon.¹On June 21, 1967, plaintiff filed a motion to amend the summons to correct the defect.Plaintiffs' motion was allowed and relators' motion was denied.

It is elementary that a legally sufficient summons is essential to the acquisition of jurisdiction over the person.The question presented on this appeal is whether failure to designate the time within which the defendant must appear is so substantial a defect that it renders the summons inadequate to give the court jurisdiction.

Although the summons in Oregon is not process ² as it is in some states, that fact is not material for purposes of the present inquiry.The question of the sufficiency of process necessary for the acquisition of jurisdiction has given rise to a considerable volume of litigation.The cases are in conflict.³Some courts take a ritualistic view of process requiring a literal compliance with the terms of the statute; other courts interpret the statutory requirements less strictly.⁴

The purpose of the summons stated in general terms is to give the defendant notice of an action against him.More specifically it is designed to inform him of the name of the court in which the complaint is filed, the names of the parties to the action, the title thereof, the relief sought, and the defendant's obligation to answer the complaint within a specified time or be subject to a default judgment.⁵In the present case relators had notice of everything required by the statutes except the time within which they were required to apper or answer.

Concededly it is important that defendant be informed of the time within which he must respond to the plaintiff's complaint.If, as in the present case, no time is specified he should be entitled to assume that notice of specified time for answer or appearance is forthcoming, and, until he receives it, the machinery of the court should not be permitted to move to his detriment.If he receives no notice relating to the time for answer or appearance, it would seem clear that a default judgment entered against him would be void and therefore subject to both direct and collateral attack.We ordinarily explain this by stating that because the defendant failed to receive proper notice the court did not have jurisdiction.It is more accurate to say that because of the lack of the notice to the defendantthe court did not have jurisdiction To enter a default judgment.

But, it does not follow that a failure to give such notice to the defendant deprives the court of jurisdiction for all other purposes.If the court's action does not deprive the defendant of an interest which deserves legal protection, there is no reason for concluding that the court does not have jurisdiction.⁶G We do not think that the failure to give relators notice of the time within which to appear or answer invaded any interest of theirs worthy of protection to such an extent that the court did not have jurisdiction to entertain a motion to amend the summons.⁷

For the purpose of preparing their defense, relators had as much information concerning the action brought against them as if the summons were perfect in form.The defect in the notice involved in the present case could harm the relators only if plaintiff's delay in amending the summons deprived them of the opportunity to take whatever action was necessary for the defense of their case.

The question of the sufficiency of the summons to give the court jurisdiction for the purposes here discussed involves essentially the same considerations as those presented where a plaintiff seeks to amend his complaint after the period of the statute of limitations has run.The amendment is allowed if it does not introduce a substantially new issue.⁸If no new issue is involved the notice received by the defendant in the original complaint is deemed sufficient to alert him to the need for gathering his evidence and preparing his case.We are of the opinion that whatever inconvenience may be caused to the relators through the failure of the summons to give notice of the time within which to appear or answer it is not sufficient to warrant the conclusion that jurisdiction over them was not acquired and we hold, therefore, that the trial court obtained jurisdiction through the service of the defective summons.

Accordingly, the alternative writ of mandamus is dismissed.⁹

GOODWIN, Justice (dissenting).

Two days before the statute of limitations had run upon his cause of action, a plaintiff filed his complaint and placed in the hands of the sheriff for service a summons which complied with ORS 15.040(2).If service of that summons had been accomplished within the state of Oregon any time within the following 60 days, the action would have been commenced within the meaning of ORS 12.030(attempt to commence an action).But this is not what happened.

Service of summons was never made in Oregon, and ORS 15.040(2) therefore became irrelevant.The summons was served in the state of Washington.When service is to be made outside the state of Oregon, ORS 15.110 controls the contents of the summons as well as the manner of service.The summons shall 'require the defendant to appear and answer within four weeks from the date of the service upon him * * *.'ORS 15.110(3).The summons that was served in Washington did not tell the defendant when to appear and answer.Under our decisions, a summons that fails to contain the information required by statute is void.White v. Johnson, 27 Or. 282, 294, 40 P. 511(1895);Hunsaker v. Coffin, 2 Or. 107(1864).

In Hunsaker v. Coffin, a default judgment was set aside because of a defect in the summons, which at that time was process.The summons required the defendant to appear and answer Forthwith.The court said:

'Evidently, one of the main requisites of a statutory summons was omitted, and a very arbitrary and illegal provision inserted in lieu thereof.Instead of notifying defendant to Appear and answer on the Return day of the summons, which would have been the First day of the Next term, it required him to appear and answer 'forthwith.'No rule of construction has been better settled than that; when the steps by which a court obtains jurisdiction are prescribed in the statutes, they must be clearly followed, in order that the court may have full authority over the person * * *.While the pretended summons omitted one of the most material requisites, it contained one that was wholly illegal.It follows, that a service of such a writ would have no binding force upon the defendant, or compel him to appear and answer any more than would the service of so much blank paper * * *.'2 Or. at 110.

A similar result was reached in White v. Johnson, where the summons failed to contain the name of the defendant.The court said:

'* * * The statute has prescribed but one form of notice through which the court may acquire jurisdiction of the person, and that is by summons, which, although not process, has the force and effect thereof, and, if not obeyed, will put the party in default.Section 52, Hill's Ann.Laws Or., provides: 'The summons shall contain the name of the court in which the complaint is filed, the names of the parties to the action and the title thereof.It shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to appear and answer the complaint, as in this section provided, or judgment for want thereof will be taken against him.'These requirements are mandatory, and not directory merely * * *.'27 Or. at 294, 40 P. at 514.

The majority opinion says in effect that our statutes on the contents of a summons and on the manner of commencing an action...