State v. District Court of Eighteenth Judicial Dist. In and For Hill County

• Court: Montana Supreme Court
• Writing for the Court: BRANTLY, C.J.
• Citation: State v. District Court of Eighteenth Judicial Dist. In and For Hill County, 188 P. 365, 57 Mont. 328 (Mont. 1920)
• Decision Date: 24 February 1920
• Docket Number: 4546.
• Parties: STATE EX REL. JERRY v. DISTRICT COURT OF EIGHTEENTH JUDICIAL DIST. IN AND FOR HILL COUNTY ET AL.

188 P. 365

57 Mont. 328

STATE EX REL. JERRY v. DISTRICT COURT OF EIGHTEENTH JUDICIAL DIST. IN AND FOR HILL COUNTY ET AL.

No. 4546.

Supreme Court of Montana

February 24, 1920

Original application by the State, on the relation of H. E. Jerry, for the annulment of an order of the District Court of the Eighteenth Judicial District in and for the county of Hill vacating a judgment. Order annulled.

F. N Utter, of Havre, and McIntire & Murphy, of Helena, for relator.

J. P Donnelly, of Havre, for respondent.

BRANTLY C.J.

Original application to this court for an order under its supervisory power to annul an order of the district court of Hill county vacating a judgment.

On October 3, 1919, the relator commenced an action in the district court of Hill county against M. O'Connell, to recover of him damages for injury alleged to have been done by him to relator's property. Because of his failure to obtain service of the original summons issued upon the filing of the complaint, the relator procured the issuance of an alias summons. This was served on O'Connell by delivery to him of a copy attached to a copy of the complaint. It did not set forth, either on its face or by indorsement on the back, the name of relator's attorney, but the complaint and the copy served on O'Connell were signed by the attorney, and his name was indorsed thereon. After service and before O'Connell was in default, he called on the attorney of relator at his office and discussed with him a possible compromise of the action, saying that he still had five days in which to appear to make his defense. No appearance was thereafter made by him. His default was entered, and, upon proof furnished by the relator, judgment rendered and entered on November 13, 1919. Execution was thereupon issued, and levy made by the sheriff thereunder upon O'Connell's property sufficient to satisfy the judgment. On December 30, 1919, O'Connell applied to the court for an order vacating and setting aside the judgment, the execution and all proceedings under it, and directing the property held by the sheriff to be returned to O'Connell, on the sole ground that the name of relator's attorney was not indorsed upon the alias summons. The application was made, and the order was granted without notice to relator. Thereupon this proceeding was brought to have the order annulled. In response to the order to show cause issued by this court, the defendant court appeared by counsel and filed a motion to quash and to dismiss the proceeding, alleging several grounds, all of which are included in the general ground that the facts stated in the petition are not sufficient to warrant relief. Upon the questions so raised, the proceeding was submitted for final decision.

1. The provisions of the Revised Codes pertinent here are the following: Section 6515, after prescribing the form and contents of the summons in a civil action, declares:

"The name of the plaintiff's attorney must be indorsed on the summons."

Section 6518 prescribes how the summons must be served. It contains this provision:

"A copy of the complaint must be served with the summons, unless one or more defendants are residents of the same county, in which case a copy of the complaint need only be served upon one of such defendants."

Section 8061 provides:

"* * * The Code establishes the law of this state respecting the subjects to which it relates, and its provisions, and all proceedings under it, are to be liberally construed with a view to effect its objects and to promote justice."

Section 6593 declares:

"The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect."

We think that if any force is to be given to the last three sections, construed in connection with section 6515, the order complained of was wholly unwarranted. It is true that the language of section 6515 is mandatory in terms. Hence this court has consistently held that an omission by the clerk to embody in the summons the contents prescribed by it, or to subscribe his name, or to affix his seal to it renders it fatally defective, so that, by service of it, the court does not acquire jurisdiction of the defendant. Sawyer v. Robertson, 11 Mont. 416, 28 P. 456; Choate v. Spencer, 13 Mont. 127, 32 P. 651, 20 L. R. A. 424, 40 Am. St. Rep. 425; Sharman v. Huot, 20 Mont. 555, 52 P. 558, 63 Am. St. Rep. 645; Duluth Brewing Co. v. Allen, 51 Mont. 89, 149 P. 494. There was not in this case a compliance with the provision quoted above; for the name of the attorney did not appear upon the summons at all, but at the end of the complaint and by indorsement on the back of it. The evident purpose of requiring the indorsement is to furnish the defendant with knowledge who the attorney of the plaintiff is, so that he may know to whom notice must be given of any step he may desire to take in his defense. Shinn v. Cummins, 65 Cal. 98, 3 P. 133; Foore v. Simon Piano Co., 18 Idaho, 167, 108 P. 1038.

If it were not apparent that O'Connell did not suffer prejudice by the clerk's omission, we should be inclined to dismiss this application, for the provision is expressed in the same mandatory terms as are all the other provisions contained in the section; but section 6518 requires a copy of the complaint to be served with the summons. The name of relator's attorney appeared at the bottom of this copy and upon the back of it. That O'Connell gained from this the knowledge which section 6515 requires to be given him by the summons is apparent from the fact that he called on relator's attorney at his office and discussed a compromise of the case with him. Under these circumstances ...