Thomas v. District Court of Third Judicial Dist. Ex Rel. Salt Lake County

171 P.2d 667, 110 Utah 245, 1946 Utah LEXIS 120

• Court: Utah Supreme Court
• Decided: July 12, 1946
• Docket: No. 6911.
• Status: Published

Opinions

LARSON, Chief Justice.

Certiorari to the District Court of Salt Lake County to review the action of that court in refusing to quash service of summons in a cause pending in that court entitled “Kathleen Beth Thomas v. William B. Thomas.” The background of the action is as follows: Kathleen Thomas as plaintiff commenced an action against William B. Thomas, as defendant in the District Court of Salt Lake County. One Peterson, a plain clothes police officer of the Salt Lake Police Department, served the summons upon the defendant in that action, plaintiff herein, on the 6th day of December 1945 as shown by his return of service, but did not endorse upon the copy of the summons left with defendant therein, the date of sérvice, nor did the officer sign his name or official title thereon. Since the policeman is not such officer as may serve a District Court summons by virtue of his office, the failure to sign his official title is not pertinent in the action. No date whatever appeared upon the copy of summons. Defendant therein, appearing specially, filed a motion to quash the service of summons. The district court denied the motion to quash and gave defendant two days after notice in which to plead. Defendant therein, William B. Thomas, brings the action here by certiorari, to review the action of the District Court on jurisdictional grounds. Hereinafter the defendant below, William B. Thomas, who brings this proceeding, will be referred to as plaintiff, and the adverse parties in this proceeding will be referred to as the Court.

The case here presents two questions:

1. Under the provisions of Section 104-5-7, Utah Code Annotated, 1943, if an officer, making personal service of a summons, fails to endorse upon the copy left with defendant the date of service and sign his name and official title thereto, and defendant timely on a special appearance moves to quash the service of summons, must such service be quashed?

2. Does the evidence sustain the holding of the court that Thomas refused to aecept service of summons, and therefore the defective service was immaterial?

The conclusions we have come to require us to answer both questions.

1. Section 104-5-7, U. C. A. 1943 reads:

“Any officer, or - other person authorized to- serve a summons, who serves the same, shall, at the time of the service thereof, indorse upon the copy or copies of such summons which he shall deliver to the defendant or defendants in such action the date upon which the same was so served, and sign his. name thereto, and add, if an officer, his official title.”

The section is silent as to the consequences of failing to comply with its provisions. But another section provides the remedy. Section 104-5-10 :

“Objection to the summons, or the service thereof, or proof of service thereof, may be taken by motion on behalf of the defendant, particularly specifying the objection, accompanied by the certificate of counsel that in his opinion the objection is well taken; after the filing and serving of such motion and certificate, the time for pleading shall be suspended until the motion is passed upon by the court.”

The question therefore is: When the officer attempting service of the summons fails to comply with Section 7, and defendant meets the requirements of the Section 10, must the court quash the service? The particular question has never been before this court, but angles thereof (half-brothers and first cousins) have been examined. In Columbia Trust Company v. Steiner, 71 Utah 498, 267 P. 788, this court, on appeal, unanimously reversed! a judgment because the trial court erred in not quashing the service of summons for defects in the affidavit of service.

We quote from that opinion:

“The service of summons in. this case, as shown by the affidavit or proof of service, is defective and insufficient in at' least three respects: First, the affidavit fails to show that the person making the service was of qualified age when the service was made; his affidavit that he was of qualified age at a subsequent time when he made the proof being insufficient. Maynard v. MacCrellish, 57 Cal. 355; * * * Second, the affidavit fails to show that the copy of summons served was delivered to the defendant personally or left at his ‘usual place of abode,’ as required by the statute. This requirement is important and compliance therewith necessary to valid service. Barwick v. Rouse, 53 Fla. 643, 401 So. 753; Laney v. Garbee, 105 Mo. 355, 16 S. W. 831, 24 Am. St. Rep. 391; Robison V. Miller, 57 Miss. 237; Bletch v. Johnson, 35 Ill. 542, 543; Vaughn v. Brown, 9 Ark. 20, 47 Am. Dec. 730; Grant v. Lawrence, 37 Utah 450, 108 P. 931, Ann. Cas. 1912C, 280. Third, it does not appear from the affidavit that the copy of summons was left with a ‘suitable person of at least the age of fourteen years’, which the statute requires. Proof that a copy was left with defendant’s wife is insufficient as not showing her age. Barnett v. State, 35 Ark. 501; Davis v. Burt, 7 Iowa 56; Barwick v. Rouse, 53 Fla. 643, 43 So. 753.

“The affidavit fails to show a valid service of process upon appellant, for which reason the judgment against him cannot stand.”

It would seem that such defects in the return of service, which could probably have been amended had application therefor been made, are not as vital as is the endorsement of time of service upon the summons, because the endorsement of the date of service is in effect a part of the summons as fixing the time in which defendant must appear. Dolan v. Jones, 37 Wash. 176, 79 P. 640. Williams v. Pittock, 35 Wash. 271, 77 P. 385.

Yet this court did not hesitate to quash that service and thereby reverse. In Glasmann v. District Court, 80 Utah 1, 12 P. 2d 361, this court held a service of summons void because entitled in the wrong court, although that defect was not raised in the motion to quash, and was raised the first time on appeal in this court, after argument and submission. And in Wasatch Livestock Loan v. District Court, 86 Utah 422, 46 P. 2d 399, this court voided a service of summons because it did not state whether or not the complaint had been filed in the clerk’s office. See also Farmers’ Banking Co. v. Bullen, 62 Utah 1, 217 P. 969. And from Winters v. Hughes, 3 Utah 443, 24 P. 759, we quote from the syllabus:

“A summons which fails to state the time and place at which a defendant is required to appear and answer the complaint filed against him is defective, and will be quashed upon motion interposed before appearance and plea.”

And from the opinion we quote:

“The legislature has very wisely provided that the time shall be fixed in the notice for the appearance of the defendant. This is necessary to give him an opportunity to prepare for trial, and to inform him of the precise day on which he is to appear. The statute is peremptory and must he complied with * *

We have no hesitation in saying the court erred in overruling the motion to dismiss the writ. If defendant had appeared and pleaded without first interposing the motion, the case would be entirely different, but such was not the fact and his motion was well taken.

The Washington statute like ours provides that a summons recite that defendant “appear with-days after the service of this summons upon you.” In Bauer V. Widholm, 49 Wash. 310, 95 P. 277, the court held a judgment void entered by default upon a summons, upon which was not endorsed the date of service, because the summons was so indefinite as to time of appearance as to render it defective and avoid the judgment. To the same effect is Thompson v. Robbins, 32 Wash. 149, 72 P. 1043; McLean v. Lester, 48 Wash. 213, 93 P. 208. An Iowa statute requires an officer making a levy of execution to endorse upon the writ the date and hour received and each act done thereunder with the date thereof. The court held each such endorsement must be made on the writ at the time the act was done or the levy was void. Drake v. Brickner, 180 Iowa 116, 163 N. W. 597. And in Mullaney v. Cutting, 175 Iowa 547, 154 N. W. 893, 895, the court said:

“Code, § 8965, requires all acts of the sheriff to be entered upon the execution at the time that the act is done. In a legal sense, there was no- levy on the real estate, and could be none, until such fact was entered upon the execution. The result is that sale was actually had before legal levy was actually made.” See also Farmers’ Savings Bank of Rhodes v. Mallicott, 209 Iowa 335, 228 N. W. 272. For other cases, cousins to the present one, see Steinmetz v. Signer, 23 Ind. 386; Wright v. Wilmot, 22 Tex. 398; Woods v. Brzezinski, 57 Conn. 471, 18 A. 252; Pendy v. Cole, 211 Iowa 199, 233 N. W. 47; Perry v. Perry, 94 Vt. 487, 111 A. 632.

Where the statute requires that the copy be attested or certified, a service otherwise sufficient is defective when the copy served is not attested or certified, as required by the statute. 50 C. J. 484 and cases cited. Neither counsel have cited any case directly involving the point here presented, and our research has not revealed any such case, due largely to the differences in statutes with reference to the form of the Summons and the manner of its service. Many cases have turned off on the question as to the time and manner in which the validity of the service was raised. See annotations in 6 A. L. R. 841, 848; 97 A. L. R. 745, 751; L. R. A. 1917C, 150; Ann. Cas. 1931A, 555 ff. Also 42 Am. Jur., Process, Secs. 15-19.

The Court relies primarily upon two cases from Puerto Rico, and cites Santiago v. Municipal Court of Cagus, 26 P. R. R. 266, and Lorenzo v. Castillo Municipal Judge, 22 P. R. R. 624. The first case is not remotely in point and the • second case not in existence. The cases in the mind of counsel evidently are Ortiz v. Municipal Judge of Coamo, 26 Puerto Rico Reports 267, and Llorens v. Castillo, 22 P. R. R. 624. The latter case, first in time involved a statute requiring the person serving the summons to endorse upon the back of the copy “A literal copy of the service and its date as appearing on the original.” Such endorsement was not made on the copy. The opinion says:

“The law should he complied with as far as possible, and when not impossible,” and then reads: “We are of the opinion that' the service of summons was really defective because the person serving it did not comply with the provisions contained in the second paragraph of Sec. 92.”

That is the section requiring the endorsement of the copy. The court then goes on to say that because defendant did not attack the service until after judgment he could not then have the judgment set aside, citing Lee v. Clark, 53 Minn. 315, 55 N. W. 127, where it was held that where if a motion to set aside the service was made before judgment, it should be granted; Creveling v. Moore, 39 Mich. 563; Low v. Mills, 61 Mich. 35, 27 N. W. 877; Mabbett v. Vick, 53 Wis. 158, 10 N. W. 84.

In the Ortiz case the statute construed in the Llorens case had been amended almost identically with our statute. As in the Llorens case no attack was made on the service until after judgment, where it was contended the service was void and the judgment a nullity. The court held on the authority of the Llorens case that the question was raised too late, it should have been raised before judgment.

We have a statute, Sec. 104-5-10, supra, which in harmony with these cases, recognize and imply that when a defective service of summons is timely attacked it should be quashed. It provides inter alia that objections to the service be taken by motion before pleading- to the complaint. This section has been on the statute books for over seventy years. Comp. Laws 1876, p. 409. As early as 1880 this court held that under the statute defects of service must be timely raised by motion or it would be deemed waived. Miller v. Zeigler, 3 Utah 17, 5 P. 518. In State Tax Comm. v. Larsen, 100 Utah 103, 110 P. 2d 558, we held that defective service could be attacked by motion after default but not after pleading. What could be the purpose of providing by statute for a motion to quash service of summons for defects in the manner of service except to emphasize that the service must be made in the manner provided by statute, and unless so served it should be quashed. It seems evident that the manner of serving, including the endorsing of the copy left for defendant cannot be said to be less important than the recitals in this return of the person serving. And in Columbia Trust V. Steiner, supra, that a return which did not show a compliance with the statutory provisions regarding service was fatal to service, and motion to quash should be granted. We there held that a return showing copy left with the wife of defendant, but which did not contain a recital that the wife was “a suitable person over 14 years of age” rendered the service void.

There are a number of reasons besides the authorities, why the statute should be complied with, and why we should not announce or recognize the rule of — that it is not necessary to endorse the date of service on the copy of summons.

The date endorsed indicates the time within which defendant must appear. If the date is not endorsed the defendant would have no definite date fixed by the summons to appear. The statute directs that the server, at the time of service, must endorse on the copy of the date of service, and leave it with defendant. This enables the person served to check against the server the date, so the return will indicate a date different from the real date served. If summons is served in advance of filing complaint, and com plaint is not filed within ten days after service, the service of summons and filing of complaint are both void and the court should dismiss the action and require the plaintiff to begin all over again. Section 104-5-9 U. C. A. 1943; Reese v. Judges, 52 Utah 520, 175 P. 601; James v. Jensen, 50 Utah 485, 167 P. 827. If date is not endorsed on copy defendant could not avail himself of this right on the record. And where a summons is served not on defendant personally but by leaving it at his usual place of abode, during his absence perhaps for a few days, he would not know on his return when he must appear or be in default. These matters are not disputed by “The Court,” but it argues that plaintiff here must allege and show he was misled by the defect. Such is not the provision of the statute. And we find no well reasoned, adjudicated case, holding that where service is attacked by motion before pleading or judgment, the trial court can inquire into the question of being misled. That would be strictly judicial legislation. In L. R. A. 1917C, p. 150 commences an elaborate annotation on the subject. This annotation follows the case of Lyon v. Baldwin, 194 Mich. 118, 160 N. W. 428, 429, L. R. A. 1917C, 148. That case lays down the rule:

“It is the general rule, that, if a statute prescribes a method for serving process, the method must be followed.”

And again it says that such writ is voidable and will be avoided by a motion to quash if made by the defendant, but if not so avoided in the suit, a judgment rendered thereon by default, need not be set aside when attacked for default in the service. The burden of the annotation is that the theory of some cases holding that defendant must show he has been misled is unsound and is summarized in this statement:

“It is sufficient to say of them that they are utterly contrary to the modern American notions of the power and purposes of a court of justice.” “This point of view loses sight of the fact that' the object of process is to bring the party into court, not to make a record in court. As soon as this is remembered it appears that to exalt the record over the copy served is really to belittle the process.” “Indeed, apart from purely clerical errors or blemishes or defects in immaterial matters, the courts have no right to enter into the question of whether or not in their opinion the party was misled.”

The annotation is commended to the reader.

Without prolonging the discussion, we conclude that the failure to endorse the date and place of service on the copy of the summons as required by Sec. 104-5-7 quoted supra is a fatal defect when timely attacked by motion, and such service of summons should be quashed.

Coming then to question number 2, was the trial court correct in holding failure to properly endorse the copy of the summons immaterial because the defendant refused to receive a copy of summons and therefore the attempted service was good under Sec. 104-5-8, U. C. A. 1943 :

“The voluntary appearance of a defendant, or a written acknowledgment of service of summons upon him, shall be deemed valid and sufficient service. When the defendant refuses to receive a copy of the summons, the offer of the officer or other person to deliver a copy thereof shall be deemed sufficient service of such summons, provided the person serving the same shall state that it is a summons.”

Did William B. Thomas, plaintiff here, defendant in District Court, refuse to receive a copy of summons so the attempted service would come within this section? All the evidence on the matter consists of the “Return of Service” by Officer Peterson who served the summons, wherein he certifies that he delivered to William B. Thomas, defendant, personally a true copy of the summons, Peterson’s testimony that he asked defendant, William B. Thomas, his name, and being told it was William B. Thomas he served the summons upon him by delivering to him personally a copy, and told him it was a summons. Another witness, Fern Larsen, testified to the same effect and added that after defendant, William B. Thomas received the copy and while he was reading it, his brother, A1 Thomas, took it from William B. Thomas. They read it together and then William B. Thomas put it in his pocket.

Another witness, Emily Barnes, testified exactly as did Fern Larsen.

The only other evidence was two affidavits filed with the motion to quash summons to the effect that the copy was left with A1 Thomas.

There is not one scintilla of evidence that William B. Thomas refused to receive or accept a copy of the summons; there is not an iota of evidence from which one could infer that he refused or declined to receive or accept copy of the summons. Every speck of evidence, and every inference possibly deducible therefrom, is that the copy was handed to and received by William B. Thomas.

The statement of the court that the service was good and sufficient under Section 104-5-8 cannot stand. Question 2 must be answered against the service. Since there is no basis in law or fact for upholding the purported service of summons, it follows that the motion to quash service was well taken and should have been granted.

While this proceeding is entitled as certiorari, the allegations of the petition cover the essentials for prohibition, andi certiorari in aid thereof. Since the issue of certiorari was not raised by the parties, and in view of the decision of this court in the Wasatch Livestock Loan case, cited supra, the writer does not think we should volunteer the issue and dispose of the case on a matter of form.

The cause is remanded to the District Court with directions to quash the service of summons. Each party to pay their own costs.

PRATT and WADE, JJ., concur.