Fibreboard Paper Products Corporation v. Dietrich

Utah Supreme Court

Fibreboard Paper Products Corporation v. Dietrich

475 P.2d 1005, 25 Utah 2d 65, 1970 Utah LEXIS 551

CourtUtah Supreme Court

DecidedOctober 28, 1970

Docket11961

StatusPublished

Cited by7 cases

This text of 475 P.2d 1005 (Fibreboard Paper Products Corporation v. Dietrich) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fibreboard Paper Products Corporation v. Dietrich, 475 P.2d 1005, 25 Utah 2d 65, 1970 Utah LEXIS 551 (Utah 1970).

Pincite

Opinions

TUCKETT, Justice:

The plaintiff commenced this action to recover for goods, wares and merchandise it claims were purchased by the defend[66]*66ants.. The complaint .was filed on February 21, 1969, and the plaintiff procured the issuance of a writ of garnishment on the same day. At the time of filing the complaint the defendants were residents of the State of California. A summons which was dated April 1, 1969, was forwarded to the sheriff of San Mateo County, California, for service upon the defendants. The summons was received by the sheriff on September 22, 1969, and was served on 'September 24, 1969, upon the defendant Ronald W. Dietrich.

Prior to the service of the summons upon the defendant Ronald W. Dietrich a copy of the summons together with a copy of the complaint was. forwarded to Western Greyhound Lines, the defendant’s employer. The defendant Ronald W. Dietrich on September 30, 1969, wrote a letter to counsel for the plaintiff with a copy addressed to the County Clerk of Salt Lake County, wherein he denied owing the bill sued upon, and also stated that if any further proceedings were had the defendant’s attorney would handle the matter. A- copy of the letter was filed by plaintiff’s counsel on October 3, 1969, and it is the plaintiff’s contention here that the letter constituted an answer to the complaint and the filing of the same constituted a general appearance on behalf of said defendant. The garnishee had answered that it was in- ' debted to the defendant in the sum of $248.96, which answer was dated on February 28, 1969.

■ At the instance of the plaintiff a default judgment was entered against the defendants on October 27, 1969. Thereafter the plaintiff moved the court for the entry of judgment against the garnishee, which motion was noticed up for hearing by the court. The garnishee appeared and moved the court to quash and set aside the writ of garnishment. The garnishee also moved to set aside the default judgment entered against the defendants. By an order dated December 4, 1969, the court granted the motion of the garnishee and quashed the writ of garnishment and also set aside the default judgment entered against the defendants. It is quite apparent from the examination of the file that the court failed to obtain jurisdiction over the defendants. While the summons was dated by plaintiff’s counsel on April 1, 1969, the same was not in fact issued for more than six months thereafter. Rule 4(a), Utah Rules of Civil Procedure, provides that a summons shall be deemed to have issued when placed in the hands of a qualified person for the purpose of service. It is quite apparent that the summons served upon the defendant Ronald W. Dietrich was not timely issued.¹ To avoid the risk of having to pay twice the garnishee had the right to attack the [67]*67default judgment entered against the defendants.² The claim of the plaintiff that the defendant Ronald W. Dietrich made a general • appearance by the filing of his letter above referred to is without merit. In any event, if it were to be construed as a general appearance the entry of judgment by default was erroneous.

We find no error in the decision of the court below, and the order of the court is affirmed. The garnishee-respondent is entitled to costs.

CROCKETT, C. J., and CALLISTER and HENRIOD, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

TUCKETT, Justice:

The plaintiff commenced this action to recover for goods, wares and merchandise it claims were purchased by the defend[66]*66ants.. The complaint .was filed on February 21, 1969, and the plaintiff procured the issuance of a writ of garnishment on the same day. At the time of filing the complaint the defendants were residents of the State of California. A summons which was dated April 1, 1969, was forwarded to the sheriff of San Mateo County, California, for service upon the defendants. The summons was received by the sheriff on September 22, 1969, and was served on 'September 24, 1969, upon the defendant Ronald W. Dietrich.

Prior to the service of the summons upon the defendant Ronald W. Dietrich a copy of the summons together with a copy of the complaint was. forwarded to Western Greyhound Lines, the defendant’s employer. The defendant Ronald W. Dietrich on September 30, 1969, wrote a letter to counsel for the plaintiff with a copy addressed to the County Clerk of Salt Lake County, wherein he denied owing the bill sued upon, and also stated that if any further proceedings were had the defendant’s attorney would handle the matter. A- copy of the letter was filed by plaintiff’s counsel on October 3, 1969, and it is the plaintiff’s contention here that the letter constituted an answer to the complaint and the filing of the same constituted a general appearance on behalf of said defendant. The garnishee had answered that it was in- ' debted to the defendant in the sum of $248.96, which answer was dated on February 28, 1969.

■ At the instance of the plaintiff a default judgment was entered against the defendants on October 27, 1969. Thereafter the plaintiff moved the court for the entry of judgment against the garnishee, which motion was noticed up for hearing by the court. The garnishee appeared and moved the court to quash and set aside the writ of garnishment. The garnishee also moved to set aside the default judgment entered against the defendants. By an order dated December 4, 1969, the court granted the motion of the garnishee and quashed the writ of garnishment and also set aside the default judgment entered against the defendants. It is quite apparent from the examination of the file that the court failed to obtain jurisdiction over the defendants. While the summons was dated by plaintiff’s counsel on April 1, 1969, the same was not in fact issued for more than six months thereafter. Rule 4(a), Utah Rules of Civil Procedure, provides that a summons shall be deemed to have issued when placed in the hands of a qualified person for the purpose of service. It is quite apparent that the summons served upon the defendant Ronald W. Dietrich was not timely issued.¹ To avoid the risk of having to pay twice the garnishee had the right to attack the [67]*67default judgment entered against the defendants.² The claim of the plaintiff that the defendant Ronald W. Dietrich made a general • appearance by the filing of his letter above referred to is without merit. In any event, if it were to be construed as a general appearance the entry of judgment by default was erroneous.

We find no error in the decision of the court below, and the order of the court is affirmed. The garnishee-respondent is entitled to costs.

CROCKETT, C. J., and CALLISTER and HENRIOD, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

475 P.2d 1005, 25 Utah 2d 65, 1970 Utah LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fibreboard-paper-products-corporation-v-dietrich-utah-1970.

Opinions

Related

Cite This Page — Counsel Stack