Seuring ex rel. Seuring v. Cook

Utah Supreme Court

Seuring ex rel. Seuring v. Cook

398 P.2d 690, 16 Utah 2d 219, 1965 Utah LEXIS 521

Utah Supreme Court·Decided February 2, 1965·No. No. 10097·Published

Opinions

HENRIOD, Chief Justice.

Appeal from a judgment dismissing plaintiff’s complaint. Affirmed, with no costs awarded.

Plaintiff, a German girl and resident of Germany, sought compensation for her child, allegedly sired by the defendant while he was stationed in Germany as a member of the military. The complaint, it appears, was not shown to defendant by counsel for plaintiff, who represented her through a consular procedure. No, summons was served or acknowledged, and no waiver of process is in evidence. Defendant, in February, 1963, signed an “answer” after receiving a somewhat threatening letter from plaintiff’s counsel, and believable evidence indicates this was done under pressure of plaintiff’s counsel, defendant having no [220]*220counsel. Also, there is believable evidence that defendant was assured that he would not have any difficulty after he signed.

Unbeknownst to defendant, a complaint was filed in July, nearly six months later, accompanied by the answer, but no judgment was entered. Seven months later, in February, 1964, defendant was cited into court on motion of plaintiff’s counsel, to show cause why judgment should not be entered against him for $20 per month from October, 1962, — 9 months prior, even, to the filing of the complaint.

After reviewing the affidavits of counsel for plaintiff and those of defendant and his wife, the court concluded that the defendant, besides not having read or received a copy of the complaint, and not having waived service of process, and not having answered any complaint then filed or revealed to him, was unduly influenced by counsel, who purported to represent, without full disclosure, not only the plaintiff, but the defendant, in a proceeding that was not adversary in any respect, the court basing its judgment on lack of jurisdiction¹ over defendant.

Under the facts of this case, without further detailing them, we think and hold that the trial court was correct in its judgment.

CALLISTER, J., concurs. WADE and McDONOUGH, JJ., concur adding this comment: That the dismissal of the action having been based on lack of jurisdiction, is without prejudice and it may be commenced again if the plaintiff so desires.

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HENRIOD, Chief Justice.

Appeal from a judgment dismissing plaintiff’s complaint. Affirmed, with no costs awarded.

Plaintiff, a German girl and resident of Germany, sought compensation for her child, allegedly sired by the defendant while he was stationed in Germany as a member of the military. The complaint, it appears, was not shown to defendant by counsel for plaintiff, who represented her through a consular procedure. No, summons was served or acknowledged, and no waiver of process is in evidence. Defendant, in February, 1963, signed an “answer” after receiving a somewhat threatening letter from plaintiff’s counsel, and believable evidence indicates this was done under pressure of plaintiff’s counsel, defendant having no [220]*220counsel. Also, there is believable evidence that defendant was assured that he would not have any difficulty after he signed.

Unbeknownst to defendant, a complaint was filed in July, nearly six months later, accompanied by the answer, but no judgment was entered. Seven months later, in February, 1964, defendant was cited into court on motion of plaintiff’s counsel, to show cause why judgment should not be entered against him for $20 per month from October, 1962, — 9 months prior, even, to the filing of the complaint.

After reviewing the affidavits of counsel for plaintiff and those of defendant and his wife, the court concluded that the defendant, besides not having read or received a copy of the complaint, and not having waived service of process, and not having answered any complaint then filed or revealed to him, was unduly influenced by counsel, who purported to represent, without full disclosure, not only the plaintiff, but the defendant, in a proceeding that was not adversary in any respect, the court basing its judgment on lack of jurisdiction¹ over defendant.

Under the facts of this case, without further detailing them, we think and hold that the trial court was correct in its judgment.

CALLISTER, J., concurs. WADE and McDONOUGH, JJ., concur adding this comment: That the dismissal of the action having been based on lack of jurisdiction, is without prejudice and it may be commenced again if the plaintiff so desires.

Seuring ex rel. Seuring v. Cook, 398 P.2d 690, 16 Utah 2d 219, 1965 Utah LEXIS 521 (Utah 1965).

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