State Ex Rel. Kalich v. Bryson

453 P.2d 659, 253 Or. 418, 1969 Ore. LEXIS 466

Opinions

O’CONNELL, J.

This is an original proceeding in mandamus to require defendant Dean Bryson, circuit judge for Multnomah County, to vacate his order denying relators’ motion to quash a summons and the service and return thereof, and allowing the plaintiff’s motion to amend the summons.

Relators are domiciliaries of the state of Washington. A complaint was filed against them in the circuit court for Multnomah County alleging- a commission of a tortious act on May 13, 1965. The complaint was filed on May 11, 1967, and according to the return of service filed on May 22, 1967 the summons was. issued and personally served on relators in Washington on the same day.

The summons was in the following form:

“IN THE NAME OF THE STATE OF OREGON : You are hereby required to appear and answer the complaint filed against you in the above-entitled action within ten days from the date of service of this summons upon you, if served within this county; or if served within any other county of this state, then within twenty days from the date of the service of this summons upon you; and if you fail so to answer for want thereof, the plaintiff will take judgment against defendants and each of them in the amount of $35,000 general damages, $210 special damages for medical care and treatment and further sum of $1500 special damages for the loss of profits in the operation of his business and for his costs and disbursements incurred herein.”

Relators appeared specially on May 25, 1967 and moved to quash the summons, arguing that it was void since it failed to designate a time for appearance applicable to those served outside the state of Oregon.① On June 21, 1967, plaintiff filed a motion to amend the summons to correct the defect. Plaintiffs’ motion was allowed and relators’ motion was denied.

It is elementary that a legally sufficient summons is essential to the acquisition of jurisdiction over the person. The question presented on this appeal is whether failure to designate the time within which the defendant must appear is so substantial a defect that it renders the summons inadequate to give the court jurisdiction.

Although the summons in Oregon is not process② as it is in some states, that fact is not material for purposes of the present inquiry. The question of the sufficiency of process necessary for the acquisition of jurisdiction has given rise to a considerable volume of litigation. The cases are in conflict.③ Some courts take a ritualistic view of process requiring a literal compliance with the terms of the statute; other courts interpret the statutory requirements less strictly.④

The purpose of the summons stated in general terms is to give the defendant notice of an action against him. More specifically it is designed to inform him of the name of the court in which the complaint is filed, the names of the parties to the action, the title thereof, the relief sought, and the defendant’s obligation to answer the complaint within a specified time or be subject to a default judgment.⑤ In the present case relators had notice of everything required by the statutes except the time within which they were required to appear or answer.

Concededly it is important that defendant be informed of the time within which he must respond to the plaintiff’s complaint. If, as in the present case, no time is specified he should be entitled to assume that notice of specified time for answer or appearance is forthcoming, and, until he receives' it, the machinery of the court should not be permitted to move to his detriment. If he receives no notice relating to the time for answer or appearance, it would seem clear that a default judgment entered against him would be void and therefore subject to both direct and collateral attack. We ordinarily explain this by stating that because the defendant failed to receive proper notice the court did not have jurisdiction. It is moré accurate to- say that because of the lack of the notice to the defendant the court did not have jurisdiction to enter a default judgment.

But, it does not follow that a' failure to give such notice to the defendant deprives the court of jurisdiction for all other purposes. If the court’s action does not deprive the defendant of an interest which deserves legal protection, there is no reason for concluding that the court does not have jurisdiction.⑥ We do not think that the failure to give relators notice of the time within which to appear or answer invaded any interest of theirs worthy of protection to such an extent that the court did not have- jurisdiction to entertain a motion to amend the summons.⑦

For the purpose of preparing their defense, relators had as much information concerning the action brought against them as if the summons were perfect in form. The defect in the notice involved in the present case could harm the relators only if plaintiff’s delay in amending the summons deprived them of the opportunity to take whatever action was necessary for the defense of their case.

The question of the sufficiency of the summons to give the court jurisdiction for the purposes here discussed involves essentially the same considerations as those presented where a plaintiff seeks to amend his complaint after the period of the statute of limitations has run. The amendment is allowed if it does not introduce a substantially new issue.⑧ If no new issue is involved the notice received by the defendant in the original complaint is deemed sufficient to alert him to the need for gathering his evidence and preparing his case. We are of the opinion that whatever inconvenience may be caused to the relators through the failure of the summons to give notice of the time within which to appear or answer it is not sufficient to warrant the conclusion that jurisdiction over them was not acquired and we hold, therefore, that the trial court obtained jurisdiction through the service of the defective summons.

Accordingly, the alternative writ of mandamus is dismissed.⑨

Footnotes

①

ORS 15.110 makes provision for personal service upon a defendant who is not within the state. Subsection (3) provides as follows:

“The summons shall, where the defendant is within the United States, require the defendant to appear and answer within four weeks from the date of the service upon him, * ** *; and if he does not appear within such time judgment may be taken against him for want thereof.”

②

Bailey v. Williams, 6 Or 71 (1876).

③

See Annot., 6 ALR 841 (1920), supplemented by Annot., 97 ALR 746 (1935). In many jurisdictions the summons is a process which issues directly from the court. In these jurisdictions the defect in the summons may not be attributable to any fault of plaintiff and therefore the court may be more inclined to overlook minor defects. However, if we focus on the critical issue— notice to defendant — it may be seen that it makes no difference who is at fault for the defects in the summons.

④

Louisell & Hazard, Cases and Materials on Pleading and Procedure, 457 (1962).

⑤

ORS 15.040 to 15.050.

⑥

See Robinson v. Greyhound Corp., 245 F2d 65 (6th Cir. 1957), noted in 27 U Cinn L Rev 103 (1958); cf., Fed R Civ P 4(h).

⑦

It is apparent from the foregoing reasoning that we regard the statement that a court does or does not have jurisdiction as a statement of a conclusion which is reached only after, valid reasons are found to support it.

⑧

Railton v. Redmar, 209 Or 80, 304 P2d 408 (1956); In re Buck’s License, 192 Or 66, 232 P2d 791 (1951); Ross v. Robinson, 174 Or 25, 147 P2d 204 (1944); Eastside Mill & Lumber Co. v. Southeast Portland Lumber Co., 155 Or 367, 64 P2d 625 (1937); Richardson v. Investment Co., 124 Or 569, 264 P 458 (1928).

⑨

The holding in the present case is not applicable to the facts of Allen v. Lococo, 87 Or Adv Sh 745, 448 P2d 569 (1968). In Allen it was not shown that defendant was apprised that a claim was being made against him until after the statute of limitations had run.