Guenther v. Guenther

749 P.2d 628, 73 Utah Adv. Rep. 45, 1988 Utah LEXIS 3, 1988 WL 774
Utah Supreme Court·Decided January 6, 1988·No. No. 19477·Published·Cited by 2 cases

Opinion

HOWE, Justice:

Defendant Russell R. Guenther appeals a judgment renewing a prior judgment in favor of plaintiff Frances Guenther for past due child support.

Plaintiff and defendant were divorced in 1969 in California. He failed to pay the child support ordered in the decree. She filed suit in the district court of Piute County, Utah, and was awarded judgment against him in November of 1974 for $11,-426.10. Prior to the running of the eight-year statute of limitations on that judgment, Utah Code Ann. § 78-12-22 (1987), she brought this action to renew the judgment. At the time the complaint was filed on August 5, 1982, her counsel furnished a summons and copy of the complaint to the Piute County Sheriff for service on defendant. Despite his repeated efforts, the sheriff was unable to personally serve defendant. Plaintiff’s counsel then obtained from the court an order authorizing service by publication and by mailing to defendant at his last known address in Piute County. A second summons was prepared and dated May 5, 1983. It was published in a local newspaper on May 25, June 1, June 15, and June 18, 1983. On May 23, the court clerk mailed a copy of the summons to defendant.

Defendant entered a special appearance for the sole purpose of contesting jurisdiction and moved to quash the substituted service of summons upon him. His motion was based upon the following three grounds: (1) summons had not issued within three months from the date of the filing of the complaint, as required by rule 4(b), Utah Rules of Civil Procedure; (2) the clerk of the court failed to mail a copy of the summons to defendant within ten days after the entry of the order authorizing service by publication and mailing, as required by rule 4(f)(1); and (3) in any event, plaintiff cannot obtain an in personam money judgment against defendant without personal service of summons upon him. The trial court denied defendant’s motion to quash and gave him fifteen days to answer plaintiff’s complaint. He did not answer the complaint, and neither he nor his counsel appeared at the trial. Judgment was entered against defendant on September 1, 1983, for $15,000. He brings this appeal, seeking reversal of the trial court’s denial of his motion to quash. We shall consider separately each of the grounds upon which the motion was based.

I

Defendant points out that the summons that was published and was mailed to him was dated May 5, 1983. He contends that there was not compliance with the requirements of rule 4(b), which mandates that summons must issue within three months of the date of the filing of the complaint, which was August 5, 1982. That rule states:

(b) Time of Issuance of Service. If an action is commenced by the filing of a complaint, summons must issue thereon within three months from the date of such filing. The summons must be served within one year after the filing of the complaint or the action will be deemed dismissed, provided that in any action brought against two or more defendants in which personal service has been obtained upon one of them within the year, the other or others may be served or appear at any time before trial.

Under rule 4(a), a summons “issues” when it is “placed in the hands of a qualified person for the purpose of service.” In an [630] affidavit contained in the record, plaintiffs counsel averred that at the time he filed the complaint on August 5, 1982, he delivered to the sheriff of Piute County a summons and requested that the sheriff personally serve it upon defendant at his residence in Circleville, Piute County. The record also contains a sworn return of service made by the sheriff which states that “in 1982” plaintiffs attorney delivered to him the summons and a copy of the complaint for service upon defendant and that he attempted to personally serve defendant over an extended period of time but was unsuccessful in finding him within Piute County. Although the sheriffs return should have been more precise as to the date on which he received the summons for service, when viewed in connection with the affidavit of plaintiffs counsel, there is sufficient proof that summons did indeed issue within three months after the date of the filing of the complaint in compliance with rule 4(b). The summons which was published and mailed to defendant was a second issuance.

II

Rule 4(f)(1) states that when an order for publication of summons is made, the clerk shall mail a copy of the summons and complaint “to each person whose address has been stated in the motion” within ten days after the order is entered. Defendant points out that the order authorizing publication of summons here was signed by the judge on April 25, 1983, but that the clerk did not mail a copy of the summons pursuant to that order until May 23. We find no merit to this argument. While the order was signed by the judge on April 25, it was not filed and entered by the clerk of the court until May 18. Her mailing a copy of the summons to defendant on May 23 fully complied with the ten-day requirement of rule 4(f)(1).

III

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

Guenther v. Guenther, 749 P.2d 628, 73 Utah Adv. Rep. 45, 1988 Utah LEXIS 3, 1988 WL 774 (Utah 1988).

749 P.2d 628 (Guenther v. Guenther) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Bueneman v. Zykan
52 S.W.3d 49 (Missouri Court of Appeals, 2001)
McCarthy v. Johnson
35 F. Supp. 2d 846 (D. Utah, 1997)