White v. Johnson

40 P. 511, 27 Or. 282, 1895 Ore. LEXIS 52

• Court: Oregon Supreme Court
• Decided: June 3, 1895
• Status: Published

Opinion

Opinion by

Mr. Justice Wolverton.

1. The judgment herein was given and entered against the defendant Cordelia Johnson as executrix of the last will and testament of A. H. Johnson, deceased, for want of an answer. Her appearance in the action was special only, and for the purpose of having the service of the summons upon her and the order continuing the action set aside and vacated. This she could do without giving the court jurisdiction to render a personal judgment againt her: Kinkade v. Myers, 17 Or. 470 (21 Pac. 557).

2. A judgment by default can be taken only when it appears that the defendant has been duly served with the summons, and has failed to answer the complaint: Section 249, Hill’s Code. “Being duly served with summons implies that the defendant has been served with summons in the manner directed by law, in every particular, requiring him to appear in the court of the county where the judgment is taken”: Trullenger v. Todd, 5 Or. 88. Has the defendant Cordelia Johnson, as such executrix, been duiy served with the summons in the action so as to put her in default, she failing to appear generally or to plead to the complaint? In other words, was her substitution and the continuance of the action in her name by the court, and the subsequent service of the summons upon her, entitled in the original action, and directed to A. H. Johnson, together with a copy of the complaint and a copy of the order of the court showing her substitution for the defendant, and requiring her to appear and answer or otherwise plead to the complaint, sufficient in law to require her to appear at the peril of suffering a judgment by default to be entered against her? It is contended by counsel for White that the court had jurisdiction to make the order of substitution, basing their contention upon section 62, Hill’s Code, which provides that “From the time of the service of the summons, or the allowance of a provisional remedy, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings,” and claiming that the issuance of the attachment was an allowance of a provisional remedy, and warranted the court in assuming jurisdiction to make the order. Granting for the purpdse of the examination of this question that the writ was duly and properly issued, such issuance cannot be so construed as to invest the court with power to control all the subsequent proceedings in the action, as in case of the service of a summons. The jurisdiction acquired by the allowance of a provisional remedy, such as the issuance of a writ of attachment, is limited and qualified, and in many respects conditional: Kelly v. Countryman, 15 Hun, 97; Waffle v. Goble, 53 Barb. 517; MeCarthy v. McCarthy, 13 Hun, 579. The writ being process, the court may exercise control over it, and prevent its abuse and perversion for the purpose of oppression: Morgan v. Avery, 7 Barb. 659. The court may also, upon condition that the writ is served and property attached under it, direct the publication of a summons against a defendant who is a nonresident, or absent from the state, or in concealment to prevent a personal service: Pennoyer v. Neff, 95 U. S. 727. And a final subjection of the property attached to the payment of a demand is always dependent and conditional upon a valid judgment subsequently obtained upon the service of a summons upon the defendant, either personally or constructively, or upon his appearance in the action.

Under a statute in Minnesota (Gen. Stat. 1878, Chap. LXVI, § 69, now Gen. Stat. 1894, § 5209,) providing that “From the time of the service of a summons in a civil action the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings, ” it has been held that where the defendant dies after the publication of the summons in an action against him had been commenced, but before it had been published the full six weeks required by statute, the court had no jurisdiction to make an order of substitution continuing the action against his executrix: Auerbach v. Maynard, 26 Minn. 421 (4 N. W. 816). In that case Berry, J., says: “Then, under section 69, (section 5209, Gen. Stat. 1894,) from the time when the service is thus complete, ‘the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings.’ If the party upon whom the service is being made dies before it is complete,— that is, before the required publications have been made, — the service cannot be completed, there being no person in being upon whom to make it; and whatever has been done, short of complete service, is of no avail, and the court acquires no jurisdiction through it.” Thus it appears that the court is without power or authority to take any action looking to the rendition of a personal judgment merely without first obtaining jurisdiction through the service of a summons upon the defendant. Aliter from the time of the service of summons the court has control of all subsequent proceedings. The statute of Minnesota stops short of the provisions of section 62 under consideration, but the judicial interpretation thereof in Auerbach v. Maynard, 26 Minn. 421, (4 ,) serves as a guide to the interpretation and construction of section 62 of our statutes to the extent that it is in harmony with the Minnesota statute. Our section 62 further provides that the court shall be deemed to have acquired jurisdiction, and shall have control of all subsequent proceedings, from the time of the allowance of a provisional remedy. The language employed in conferring jurisdiction is the same in either case, whether by the service of a summons or the allowance of a provisional remedy, but it is very evident that the powers acquired thereby are not the same, and hence not coequal nor coextensive. The purpose of a provisional remedy, as understood and employed by the Code, is to give the plaintiff temporary security pending the action, which must abide the determination thereof. An attachment in this state, as elsewhere, is regarded as a quasi proceeding in rem, and is known under the statute as a provisional remedy, the express purpose of which is to acquire a lien upon the property of the debtor, temporary in its nature, to await the final judgment of the court touching the action, in connection with which the proceeding is brought into requisition. The court is empowered, through the allowance of a provisional remedy, thereafter to take whatever action may seem necessary and proper looking to the acquirement, preservation, and perfection of the lien. The proceeding is simply auxiliary to the main case. The service of the summons confers jurisdiction of the person, and the allowance of the provisional remedy gives jurisdiction of the subject matter of the auxiliary proceedings, and each particular kind of jurisdiction confers upon the court its peculiar powers and none other. So it has been held that the court acquires by the allowance of a provisional remedy jurisdiction to make substitution, and to order the action continued in the name of the personal representatives of a deceased party, upon the ground that such action of the court is necessary and proper to put the suit in such a condition that plaintiff can enforce his provisional lien: Moore v. Thayer, 10 Barb. 259. And this is probably the correct doctrine.

3. But a question of much greater complication is as to whether the defendant Cordelia Johnson has been properly served with a summons or with process of the court, so as to give it jurisdiction to render judgment against her by default; and herein is involved the proper practice of the court in making substitution, and bringing the substituted party before it. The procedure for bringing in new parties after the court has made the order to that effect appears to be to amend the complaint by inserting therein such allegations as are necessary to make the persons omitted parties to the action, and to insert their names in the summons; and if they do not enter an appearance, to serve them with the amended summons and complaint, giving them the usual time allowed by statute to original parties in which to answer: Fitnam’s Trial Procedure, § 351; Penfield v. Wheeler, 27 Minn. 358 (7 N W. 364).

4. Bringing in a new party is somewhat analogous to' bringing a personal representative of a deceased party before the court where the deceased was not served with the summons in the action. Section 38, Hill’s Code, provides that “No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court may, at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representative or successor in interest.” It has been held in New York and California, under statutes similar to this, that all that is necessary to put the case in condition to pi’oceed is to obtain an order, upon proper notice, directing that the action be continued against those who had succeeded to the interest of the deceased party: Gordon v. Sterling, 13 How. Pr. 405; Coon v. Knapp, 13 How. Pr. 175; Allen v. Walter, 10 Abb. Pr. 379; Emeric v. Alvarado, 64 CaL 529 (2 Pac. 462); Lyles v. Haskell, 35 S. C. 391 (14 S. E. 832); Judson v. Love, 35 Cal. 469. But in none of these cases had the original defendant in the action died previous to a service of summons upon him or his appearance of record. The statute provides that the court may at any time within one year after the death of a party, on motion, allow the action to be continued against the personal representative, but no provision is made in a case of this kind as to the manner of bringing in the substituted party. The court could, therefore, adopt any reasonable procedure that might seem proper, but the service of a valid summons could not be dispensed with. Probably the better practice would have been for the lower court to have required the plaintiff to file a supplemental complaint in the action, showing the death of defendant and the appointment of the executrix, and thereupon to issue an alias summons containing the title of the action after substitution made, and have the same directed to the said Cordelia Johnson. A service of such a summons, together with a copy of the complaint, would undoubtedly suffice to require her appearance in default of which judgment might have been entered against her. Such a practice and procedure seems reasonable, and well calculated to effect the desired result in an orderly manner.

5. By the order of substitution in the case at bar the action was continued against Cordelia Johnson, the personal representative of the deceased defendant, upon whom the summons had not been served; so that, assuming that she had notice of the order of substitution, and that the same was regularly entered, she would simply step into the shoes of A. H. Johnson, who had not had his day in court, and it was just as essential that she should have her day in court as that A. H. Johnston should have had his in the first instance. We take it, therefore, that before a valid judgment can be entered against her, whether as executrix, or to be of binding force and effect to the extent only of the property attached, she must be served with notice in the manner provided by law, as she refuses to voluntarily submit to the jurisdiction of the court. The statute has prescribed but one form of notice through which the court may acquire jurisdiction of the person, and that is by summons, which, although not process, has the force and effect thereof, and if not obeyed will put the party in default. Section 52, Hill’s Code, provides that “The summons shall contain the name of the court in which the complaint is filed, the names of the parties to the action, and the title thereof. It shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to appear and answer the complaint, as in this section provided, or judgment for want thereof will be taken against him.” These requirements are mandatory, and not directory merely: Lyman v. Milton, 44 Cal. 630. Section 55 provides that the service shall be by delivering a copy thereof, together with a copy of the complaint. Now, the summons served upon Cordelia Johnson in form filled the requirements of the statute, but Mrs. Johnson’s name was not contained in the title, nor was it directed to her. So far as appears from the summons itself it contained nothing which could or would inform her that she must appear in obedience to its mandate. So with the copy of the complaint with which she was served, she is nowhere mentioned as a party litigant either in her individual or representative capacity. She was informed by the order served with the summons and complaint that the action had been ordered continued against her as the executrix of A. H. Johnson, deceased; and she was advised thereby that she would have ten days after service within which to plead to the complaint. Is all this sufficient to put the administratrix in default after the lapse of ten days from service, and to invest the court with jurisdiction to enter judgment against her in her representative capacity? Can it be said that she was served with the summons in the action, substantially such as the law directs?

If A. H. Johnson had lived, and the court had simply made an order after the allowance of the writ that he have ten days after service of a copy of the order and complaint to plead thereto, and service had been made as required by the order, it must be conceded that the proceeding would not have been equivalent to the issuance and service of a proper summons upon him. A noncompliance with the order would not have put him in default. The order of the court in the present case, including its service with a copy of the complaint, could scarcely have a different or more vital effect, and the fact that she was served with a copy of the summons in which her name was nowhere mentioned could not add to the force of the proceeding. If Johnson had been served with the summons, and substitution made thereafter, the case would be different, as the representative, having due notice of the substitution, would take the case up at the point where and in the condition in which the predecessor left it. Judge Rumsey, in his work entitled Rumsey’s Practice, (Yol. I, page 666,) says: “Where the action is revived, the issue and proceedings are taken up at the point where the death of the party as to whom the change is made left them; the new or substituted party takes the place of the prior one, and the case is revived and proeeeds in all respects as if the new party had been in the case from the beginning.” In Reilly v. Hart, 130 N. Y. 625, (29 N. E. 1099,) the court had under consideration a foreclosure proceeding wherein the plaintiff died pending the service of summons upon two of the defendants by publication, and before the expiration of six weeks publication thereof as required by statute. Bradley, J., speaking for the court, said: “* * * but it is not seen how four weeks publication of summons before the death, and the two weeks following, could be treated as an effectual service upon these nonresident defendants. During the latter period there was no plaintiff, and in practical effect no action, to support any proceedings within that time. The prior publication of the summons was then an unaccomplished attempt to serve it.” Plaintiff’s executrix was substituted, and it was held that what had been accomplished while there was a plaintiff remained effectual; and when substitution had been made, progress in the action could properly be made from the point in the proceedings where the suspension had left them, and the substitution had no effect other than to continue the cause in the name of the successor as such. Such being the law, and as no summons was served upon A. H. Johnson, we think that his personal representative, Mrs. Cordelia Johnson, should be served with a proper summons before she could be put in default; otherwise the taking of the property in the action or as a result of it would not be by due process of law.

6. This perhaps disposes of the questions which are properly here upon the motion to set aside the service of the summons upon Cordelia Johnson as the executrix of A. H. Johnson, deceased, and has the effect to vacate the .judgment, including the order for the sale of attached property. All this is, however, amenable, providing the writ of attachment was properly issued; and as the case would in all probability come here again for an adjudication upon the regularity and legality of the issuance of the writ, it is thought proper to indicate our opinion at this time upon the question suggested, and dispose of the case accordingly. The question is, was the writ of attachment properly issued ? and this depends upon whether a summons was issued at the time plaintiff had the property of A. H. Johnson attached. The statute (Hill’s Code, § 144,) provides that “the plaintiff, at the time of issuing the summons, or any time afterwards, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered.” Attachment proceedings are purely statutory, and were unknown at common law, and a strict compliance with the provisions of the statute is necessary to the acquirement of a valid attachment. Without a valid writ there can be no levy under it, hence no attachment. So it has been held, and statutes similar to the above have been so construed as to require the issuance of a summons in the action at the time of or prior to the issuance of the writ of attachment; otherwise the attachment is without validity or force: Low v. Henry, 9 Cal. 538, 552; Mills v. Corbett, 8 How. Pr. 500; Kellar v. Stanley, 86 Ky. 240 (5.S. W. 477).

7. The issuance of the writ being the allowance of a provisional remedy, unless properly and legally issued, the court acquired no jurisdiction to make the order of substitution requiring the cause to be continued in the ñame of Cordelia Johnson as executrix.

8. A summons may be said to have issued in an action commenced in the circuit or county courts of this state when it is made out and signed by the plaintiff or his attorney, and placed in the hands of the sheriff, with the intention that it be served upon the defendant. It is difficult to see how anything less than this would constitute an issuance of a summons. The statute requires that the summons shall be served by the sheriff, and without a delivery to him for service such instrument is not yet endowed with vitality for any purpose: Hekla Insurance Company v. Schroeder, 9 Ill. App. 472; Ross v. Luther, 4 Cowp. 158, and Mills v. Corbett, 8 How. Pr. 500.

9. The sheriff is required to indorse upon the summons the date of the delivery to him, and an important legislative purpose of this is to establish, fix, and preserve the date of its issue; so that other proceedings dependent upon the fact of its issuance should not be rendered precarious and uncertain, as would be the case if left to be established by proof aliunde the record. The indorsement being required by statute, it becomes an official duty which the officer must observe and perform; and when performed, the record thus made imports like verity with his returns of process and the like, if indeed it is not a part of the return required of him to be made. The record in the case at bar shows a variance as between the sheriff’s indorsement showing the date of the delivery of the summons to him, and the affidavit of plaintiff as to the date of its issuance. The sheriff shows that it was delivered to him April seventeenth, eighteen hundred and ninety-four; and the affidavit of plaintiff by strong implication shows that it was delivered on the day previous. Evidently the affidavit was not intended to impeach the record of the sheriff, but its effect is to contradict it, to say the least. The court below made the order continuing the action in the name of the executrix upon the affidavit alone.. The summons showing the date of the receipt was not before the court, as it had not been returned. Apparently the indorsement was not considered material either by the counsel or the court, but the view we take of the case renders it highly important. The question whether the court had the power to make the substitution hinges upon the further question as to which of these records imports the truth as to the date of the issuance of the summons. As a general proposition, as against parties to the record or their privies, the sheriff’s return imports absolute verity, and it cannot be impeached except by some direct attack (22 Am. and Eng. Ency. of Law, 193); but here no effort is made to get clear of or set aside the sheriff’s indorsement, and treating it as of no vitality, the court is asked to disregard it, and proceed with the case as if none had been made. To thus treat it would be to say the indorsement was an absolute nullity for any purpose and in any proceeding, whether collateral or direct. We think that while the indorsement of the sheriff showing the date of a delivery of the summons to him stands unimpeached, and not set aside or otherwise vacated by any adequate proceeding for that purpose, it must be taken as true and to import absolute verity, as against an affidavit of the plaintiff in the action contradicting it in a subsequent proceeding in the same case to procure an order of substitution and continuance of the action in the name of the executrix. Eor these reasons, and looking to the record in the case made at the instance of the plaintiff and by the sheriff, an officer of the court, and in the line of his duties as prescribed by the statute, all which remain unassailed and unimpeached, we conclude that the summons had not issued at the time of the issuance of the writ of attachment, nor was it issued until the day subsequent to the issuance of the attachment. Therefore the allowance of the provisional remedy was without authority of law, and void, and it was error in the court below to grant the order allowing the action to be continued against Cordelia Johnson the executrix. The judgment of the court below is reversed, and the cause remanded for such other proceedings as may be deemed advisable, not inconsistent with this opinion.

Reversed.

Bean, C. J., expressed no opinion.