Vanover v. Vanover
| Decision Date | 19 February 1957 |
| Docket Number | No. 2766,2766 |
| Citation | 77 Wyo. 55,62 A.L.R.2d 931,307 P.2d 117 |
| Parties | , 62 A.L.R.2d 931 Louise Green VANOVER, Plaintiff and Respondent, v. Lee Roy VANOVER, Defendant and Appellant. |
| Court | Wyoming Supreme Court |
Elmer J. Scott and James H. Sperry, Worland, for appellant.
Thomas M. McKinney, Basin, for respondent.
This appeal is from an adverse judgment in a divorce action wherein the respondent was granted a decree of absolute divorce from the appellant and was also awarded a property settlement.
One of the matters relied upon by the appellant to obtain a reversal of the judgment is his contention that the court had not obtained jurisdiction over his person.
There were two summons issued. The first appears upon its face to have been issued on April 23, 1955, received by the sheriff April 28, 1955, made returnable May 2, 1955, served 'by Service through Lefty Graham Emploeu (sic) of Defdn (sic)' on May 3, 1955, and filed May 21, 1955, the answer day being shown thereon as May 21, 1955. The second summons appears upon its face to have been issued April 27, 1955, received by the sheriff April 27, 1955, served on defendant personally on April 27, 1955, filed April 28, 1955, made returnable May 2, 1955, and showing the answer day to be May 21, 1955.
The defendant appeared specially and moved the court 'to vacate, set aside and quash the alleged or pretended service,' and the court sustained the motion and vacated, set aside and quashed the same. Five days after this order was entered, it was vacated by the court's further order and defendant was given until a day certain within which to plead to plaintiff's petition. Thereafter the defendant filed a motion to make definite and certain which was sustained in part, a demurrer which was overruled and finally an answer. In all these pleadings the defendant either expressly reserved his original objection to the court's jurisdiction or affirmatively pleaded the same objection and when adverse rulings were made, the defendant took proper exception. Similarly at the commencement of the trial, the defendant renewed his objection to the court's jurisdiction, and when the same was overruled, he preserved his exception.
Section 3-1006, W.C.S.1945, provides:
'When the time for bringing parties into court is not fixed by statute, the summons shall be returnable on the second Monday after its date; but when it is issued to any other county, it may be made returnable, at the option of the party having it issued, on the third or fourth Monday after its date; and the day of the month on which it is returnable shall be stated therein.'
Under the circumstances in this case, another applicable statute for bringing the defendant into court is § 3-1009, W.C.S.1945, as follows:
'The service shall be by delivery at any time before the return day, (of) a copy of the summons with the indorsements thereon, together with a copy of the petition to the defendant personally, or by leaving a copy of the summons and petition at his usual place of residence with some member of his family, or other person in his employ over the age of fourteen (14) years, or if the defendant is a partnership, sued by its company name, by leaving a copy of the summons and petition at its usual place of doing business; and the return must be made at the time mentioned in the writ, and the time and manner of service shall be stated on the writ.'
Section 3-1501, W.C.S.1945, fixes the time for defendant's appearance and pleading as follows:
The return day of the summons is thus made of special importance as it is from that day the time is computed to determine the day on or before which the defendant is required to act and it also limits the time within which legal service of that process may be made. To permit a plaintiff to transgress these statutes by having the summons specify the return day as the first Monday rather than the second, third or fourth Monday for its return after issuance, as the case may require it, would leave the date of defendant's answer to the whim of a plaintiff and allow plaintiff to flaunt an express law of this state. This may not be done. In consequence the summons issued April 27, 1955, was defective and could not give the court jurisdiction of the person of the defendant even though it was timely served upon the defendant personally, as appears by the return.
With respect to the summons issued April 23, 1955, both the return day and the answer day were correctly set forth. However, the return of this summons shows it was not served until May 3, 1955, one day after the time when legal service of the same might have been made. Additionally the return fails to show this summons was served in any manner authorized by our statutes. The statute here applicable provides that service may be made '* * * by leaving a copy of the summons and petition at his (the defendant's) usual place of residence with some member of his family, or other person in his employ over the age of fourteen (14) years * * *.' This wording might have been more explicit, but, if we were to interpret it so as to separate the phrase which requires the summons and petition to be left at the usual place of residence of the defendant, from the phrase 'or other person in his employ,' this would give such an enlarged field for making service that it would open wide the door to fraud. We must therefore hold that in order to make valid service of process upon a defendant by serving his employee, such service must be made at the defendant's usual place of residence. This is not shown to have been done in this case. It is also apparent that the writing of the word 'Emploeu,' as we read this word of questionable legibility, so taxes our ability to decipher its letters, that it leaves considerable doubt whether it was intended to indicate that it was the employee or the employer of the defendant who was served. From what has been said we conclude there was no proper service of the April 23, 1955, summons.
The remaining question to be answered regarding service of process upon the defendant is whether, having appeared for the purpose of quashing service and attacking the court's jurisdiction of the defendant's person, the defendant's subsequent actions or proceedings waived his right to insist upon the defects of process by constituting his appearance to be general.
As above indicated, following the court's vacation of its previous order sustaining appellant's motion to quash the service and the final denial of that motion, the defendant at every step in the proceeding attempted to preserve his objection to the court's jurisdiction. This was done either by expressly stating he was not waiving this objection or by continuing to affirmatively insist upon the same.
In those jurisdictions where special appearances are permitted for the limited purpose of attacking jurisdiction, there is some conflict of authority as to whether further participation in the proceeding waives the special character of the initial appearance and makes the defendant's appearance general, even though the objection to jurisdiction is preserved and continued to be asserted at every opportunity. See 3 Am.Jur. § 38, p. 807. In 6 C.J.S., Appearances, § 21, p. 62, after stating that, if there is some act which amounts to a general appearance after a special appearance is made, the jurisdictional objection is waived, it is said 'Even if defendant awaits the ruling of the court, should it prove to...
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