Thomas v. District Court of Third Judicial Dist. In and For Salt Lake County

• Decision Date: 12 July 1946
• Docket Number: 6911
• Citation: 110 Utah 245,171 P.2d 667
• Court: Utah Supreme Court
• Parties: THOMAS v. DISTRICT COURT OF THIRD JUDICIAL DIST. IN AND FOR SALT LAKE COUNTY et al.

171 P.2d 667

110 Utah 245

THOMAS v. DISTRICT COURT OF THIRD JUDICIAL DIST. IN AND FOR SALT LAKE COUNTY et al.

No. 6911

Supreme Court of Utah

July 12, 1946

Certiorari by William B. Thomas against the District Court of the Third Judicial District in and for Salt Lake County, State of Utah and the Hon. J. Allan Crockett, one of the Judges thereof and Kathleen Beth Thomas, to review the action of the court in refusing to quash service of summons in a cause pending in that court by Kathleen Beth Thomas against William B. Thomas.

Cause remanded with directions to quash the service of summons.

Attorneys and Law Firms

Golden W. Robbins, of Salt Lake City, for plaintiff.

E. M Morrissey, of Salt Lake City, for defendants.

OPINION

LARSON Chief Justice.

Certiorari to the District Court of Salt Lake County to review the action of that court in refusing to quash service of summons in a cause pending in that court entitled 'Kathleen Beth Thomas v. William B. Thomas.' The background of the action is as follows: Kathleen Thomas as plaintiff commenced an action against William B. Thomas, as defendant in the District Court of Salt Lake County. One Peterson, a plain clothes police officer of the Salt Lake Police Department, served the summons upon the defendant in that action, plaintiff herein, on the 6th day of December 1945 as shown by his return of service, but did not endorse upon the copy of the summons left with defendant therein, the date of service, nor did the officer sign his name or official title thereon. Since the policeman is not such officer as may serve a District Court summons by virtue of his office, the failure to sign his official title is not pertinent in the action. No date whatever appeared upon the copy of summons. Defendant therein, appearing specially filed a motion to quash the service of summons. The district court denied the motion to quash and gave defendant two days after notice in which to plead. Defendant therein, William B. Thomas, brings the action here by certiorari, to review the action of the District Court on jurisdictional grounds. Hereinafter the defendant below, William B. Thomas, who brings this proceeding, will be referred to as plaintiff, and the adverse parties in this proceeding will be referred to as the Court.

The case here presents two questions:

1. Under the provisions of Section 104-5-7, Utah Code Annotated, 1943, if an officer, making personal service of a summons, fails to endorse upon the copy left

with defendant the date of service and sign his name and official title thereto, and defendant timely on a special appearance moves to quash the service of summons, must such service be quashed?

2. Does the evidence sustain the holding of the court that Thomas refused to accept service of summons, and therefore the defective service was immaterial?

The conclusions we have come to require us to answer both questions.

1. Section 104-5-7, U.C.A.1943 reads:

'Any officer, or other person authorized to serve a summons, who serves the same, shall, at the time of the service thereof, indorse upon the copy or copies of such summons which he shall deliver to the defendant or defendants in such action the date upon which the same was so served, and sign his name thereto, and add, if an officer, his official title.'

The section is silent as to the consequences of failing to comply with its provisions. But another section provides the remedy. Section 104-5-10:

'Objection to the summons, or the service thereof, or proof of service thereof, may be taken by motion on behalf of the defendant, particularly specifying the objection, accompanied by the certificate of counsel that in his opinion the objection is well taken; after the filing and serving of such motion and certificate, the time for pleading shall be suspended until the motion is passed upon by the court.'

The question therefore is: When the officer attempting service of the summons fails to comply with Section 7, and defendant meets the requirements of the Section 10, must the court quash the service? The particular question has never been before this court, but angles thereof (half-brothers and first cousins) have been examined. In Columbia Trust Company v. Steiner, 71 Utah 498, 267 P. 788, this court, on appeal, unanimously reversed a judgment because the trial court erred in not quashing the service of summons for defects in the affidavit of service.

We quote from that opinion:

'The service of summons in this case, as shown by the affidavit or proof of service, is defective and insufficient in at least three respects: First, the affidavit fails to show that the person making the service was of qualified age when the service was made; his affidavit that he was of qualified age at a subsequent time when he made the proof being insufficient. Maynard v. MacCrellish, 57 Cal. 355; * * * Second, the affidavit fails to show that the copy of summons served was delivered to the defendant personally or left at his 'usual place of abode, ' as required by the statute. This requirement is important and compliance therewith necessary to valid service. Barwick v. Rouse, 53 Fla. 643, 43 So. 753; Laney v. Garbee, 105 Mo. 355, 16 S.W. 831, 24 Am.St.Rep. 391; Robison v. Miller, 57 Miss. 237; Bletch v. Johnson, 35 Ill. 542, 543; Vaughn v. Brown, 9 Ark. 20, 47 Am.Dec. 730; Grant v. Lawrence, 37 Utah 450, 108 P. 931, Ann.Cas.1912C, 280. Third, it does not appear from the affidavit that the copy of summons was left with a 'suitable person of at least the age of fourteen years', which the statute requires. Proof that a copy was left with defendant's wife is insufficient as not showing her age. Barnett v. State, 35 Ark. 501; Davis v. Burt, 7 Iowa 56; Barwick v. Rouse, 53 Fla. 643, 43 So. 753.

'The affidavit fails to show a valid service of process upon appellant, for which reason the judgment against him cannot stand.'

It would seem that such defects in the return of service, which could probably have been amended had application therefor been made, are not as vital as is the endorsement of time of service upon the summons, because the endorsement of the date of service is in effect a part of the summons as fixing the time in which defendant must appear. Dolan v. Jones, 37 Wash. 176, 79 P. 640. Williams v. Pittock, 35 Wash. 271, 77 P. 385. Yet this court did not hesitate to quash that service and thereby reverse. In Glasmann v. District Court, 80 Utah 1, 12 P.2d 361, this court held a service of summons void because entitled in the wrong court, although that defect was not raised in the motion to quash, and was raised the first time on appeal in this court, after argument and submission. And in Wasatch Livestock Loan v. District Court, 86 Utah 422, 43 P.2d 399, this court voided a service of summons because it did not state whether or not the complaint had been filed in the clerk's office. See also Farmers' Banking Co. v. Bullen, 62 Utah 1, 217 P. 969. And from Winters v. Hughes, 3 Utah 443, 24 P. 759, we quote from the syllabus:

'A summons which fails to state the time and place at which a defendant is required to appear and answer the complaint filed against him is defective, and will be quashed upon motion interposed before appearance and plea.'

And from the opinion we quote [3 Utah 446, 24 P. 760]:

'The legislature has very wisely provided that the time shall be fixed in the notice for the appearance of the defendant. This is necessary in order to give him opportunity to prepare for trial, and to inform him of the precise day on which to appear * * *. The statute is peremptory and must be complied with. * * *

'We have no hesitation in saying that the court erred in overruling the motion to dismiss the writ. If the defendant had appeared and pleaded without first interposing the motion, the case would be entirely different, but such was not the fact, and his motion was well taken.'

The Washington statute like ours provides that a summons recite that defendant 'appear with days after the service of this summons upon you.' In Bauer v. Widholm, 49 Wash. 310, 95 P. 277, the court held a judgment void entered by default upon a summons, upon which was not endorsed the date of service, because the summons was so indefinite as to time of appearance as to render it defective and avoid the judgment. To the same effect is Thompson v. Robbins, 32 Wash. 149, 72 P. 1043; McLean v. Lester, 48 Wash. 213, 93 P. 208. An Iowa statute requires an officer making a levy of execution to endorse upon the writ the date and hour received and each act done thereunder with the date thereof. The court held each such endorsement must be made on the writ at the time the act was done or the levy was void. Drake v. Brickner, 180 Iowa 116, 163 N.W. 597. And in Mullaney v. Cutting, 175 Iowa 547, 154 N.W. 893, 895, the court said: 'Code, § 3965, requires all acts of the sheriff to be entered upon the execution at the time that the act is done. In a legal sense, there was no levy on the real estate, and could be none, until such fact was entered upon the execution. The result is that sale was actually had before legal levy was actually made.' See also Farmers' Savings Bank of Rhodes v. Mallicott, 209 Iowa 335, 228 N.W. 272. For other cases, cousins to the present one, see Steinmetz v. Signer, 23 Ind. 386; Wright v. Wilmot, 22 Tex. 398; Woods v. Brzezinski, 57 Conn. 471, 18 A. 252; Pendy v. Cole, 211 Iowa 199, 233 N.W. 47; Perry v. Perry, 94 Vt. 487, 111 A. 632.

Where the statute requires that the copy be attested or certified a service otherwise sufficient is defective when the copy served is not attested or certified, as required by the statute. 50 C.J. 484 and cases cited. Neither counsel have cited any case directly involving the point here presented, and our...