McKnight v. Grant

AILSHIE, C. J. This is an appeal from a judgment entered on default, after service by publication. The plain — 635 — tiff filed his complaint, and caused certain mining property belonging to tbe defendant to be attached. The summons was returned not served, for the reason that the defendant could not be found. An alias summons was thereafter issued and the plaintiff made and filed an affidavit for publication of summons, and presented the same to the probate judge of Nez Perce county, that being the county in which the action was commenced, praying for an order for publication of summons. The order wás duly and regularly made by the probate judge on the same date, directing publication for six weeks, in the “Lewiston Tribune,” and the mailing of a true copy of the complaint and summons to the defendant at his place of residence, that being Detroit, Michigan. Affidavits of mailing, and also of the publication were made and filed, and the defendant thereafter made a special appearance, and moved to quash the summons and service thereof on various and sundry grounds set out in the motion. The motion was overruled, and a bill of exceptions was prepared, settled, and filed, and the appeal was taken from the judgment entered on default. The first question presented by appellant is that section 4145 of the Revised Statutes is unconstitutional and void in so far as it authorizes a probate judge to order publication of a summons in a case that is pending in the district court. It is first claimed that under section 13 of article 5 of the constitution, which provides that “The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it as a co-ordinate department of the government,” the legislature has no authority to confer upon a probate judge the power to make orders for publication of summons in any case pending in another court. Appellant also contends that such power and authority must be exercised by the “court” as distinguished from a “judge.” And, again, he contends — that under section 21, of article 5, the jurisdiction of probate courts in civil matters is limited to cases wherein the debt or damage claimed does not exceed the sum of $500. It is argued that to authorize a probate judge to make an order for the publication — 636 — of summons in a case pending in the district court, involving real estate, or a large sum of money, far in excess of the probate jurisdiction, is indirectly conferring upon that court a jurisdiction not given it by the constitution. Section 4145, Revised Statutes, was in force long prior to, and at the time of, the adoption of the constitution, and at that time our probate court was constituted practically the same with very similar jurisdiction as it has been ever since the adoption of the constitution. It was also provided by the constitution (section 2, article 21), that all laws then in force within the territory “not repugnant to this constitution, shall remain in full force,” etc. Primarily, the matter of the service of process is purely ministerial. It has, however, been held in this state and other states having statutes similar to our sections 4145 and 4146, providing for service by publication, that the making of an order for publication is the exercise of a judicial or quasi judicial function. In other words, the party seeking to make such .a service must make a showing of the probative facts, and the judge to whom this showing is presented must exercise judgment ánd discretion in determining whether or not such facts bring the plaintiff within the purview of the requirements of section 4145, authorizing the order. It should be borne in mind, however, that the making of such an order is in no manner or respect a determination of the merits of the plaintiff’s case,'or any part of his case, but is merely a determination that a sufficient showing has been made to justify bringing the defendant into court in response to the plaintiff’s alleged cause of action. It is not a determination in advance that a good service is going to be had upon the defendant. It should be further observed that before any judgment can be entered in the .district court in such action, application must be made to the court (Rev. Stats., subd. 3, see. 4360), and both the power and duty rests with the court in which the case is pending to first determine whether a good and valid service has been made on the defendant, which necessarily involves an examination of all the steps taken in procuring that service. The fact that the order has been made either by the probate or district judge — 637 — is not conclusive on the court when application is made to him for judgment. We must conclude that although it requires the exercise of a judicial or quasi judicial function in-making the order for publication, nevertheless, it is not the exercise of a function or jurisdiction prohibited by the constitution. Indeed, a careful examination of the constitution at once discloses that it contains no language prohibiting, either directly or indirectly, or by implication, the exercise of such a power and such a function by a probate court or the judge thereof. It confers a grant of certain powers in certain matters. It neither confers in specific terms nor prohibits by implication the exercise of this particular and specific power. Probate judges were exercising this power when the constitution was adopted, and it is fair and reasonable to assume that the framers of the constitution intended that they should continue in the exercise of such power. It is not the exercise of a delegated judicial power for many reasons. First, the power is still exercised by the judicial department of the state government. It is done ex parte, and could derive no greater force if done by the court, and requires no determination of any controverted matter or question. On . the other hand, section 13, of article 5, of the constitution was never intended to prohibit other departments of the state government than the judicial from exercising some judicial or quasi judicial functions. We think by this provision it was rather intended to preserve to the judicial department of the state government the right and power to finally determine controversies between parties involving their rights and upon whose claims some decision or judgment must be rendered or determination made. (23 Cyc. 1613-1623, and notes; In re Saline Co. Subscription, 45 Mo. 52, 100 Am. Dec. 337; De Camp v. Archibald, 50 Ohio St. 618, 40 Am. St. Rep. 692, 35 N. E. 1056; In re Walker, 74 N. Y. Supp. 94, 68 App. Div. 196; State v. Le Clair, 86 Me. 522, 30 Atl. 7; Century Dictionary, “Judicial Power.”) It is a matter of common knowledge to every student of the law that in this country, notwithstanding this constitutional provision to be found in all the states, nevertheless, almost every executive, ministerial — 638 — and administrative officer has, in many instances, to exercise judgment and discretion of a quasi judicial nature, and yet the citizen or party who may deem himself aggrieved thereby still has his remedy in the courts. No one has claimed, however, that" such officers may not exercise those necessary powers in the discharge of their duties. The exercise of such power is in no respect an invasion of the judicial power reserved to the courts by the constitution. Considerable space is occupied in appellant’s brief in arguing that the direction of the summons as to the time in which defendant should answer is not in conformity with the requirements of subdivision 3, of section 4140, Revised Statutes. That provision of the statute requires that the .summons shall contain “A direction that the defendant appear and answer the complaint Within ten days, if the summons is served within the county in which the action is brought; within twenty days, if served out of the county, but in the district in which the action is brought, and within forty days if served elsewhere.” The summons in that respect required the defendant to appear and answer “within ten days after the service of the summons upon you, if served within this county and state; within twenty days after the service of this .summons upon you if served within the above-entitled judicial district outside of this county and state; otherwise within forty days, if served elsewhere; in either case, exclusive of the day of service. ’ ’ Appellant contends that this is a departure from the statutory requirements, and leaves the time for answering in doubt, and uncertainty, and amounts to no requirement for his appearance in ease he is served outside the state. It is true that the sentence is somewhat involved, and opens the way for some refinement of argument on account of the repetition of the words “this county and state. ’ ’ It would have undoubtedly been much better to have followed the statutory language, but, on the other hand, we are satisfied that the defendant was neither deceived nor misled by the sentence contained in this summons as to the time within which he should appear and answer. To one who is not naturally looking for defects in the summons, it would con — 639 — vey the same notion as to the time for answering as that conveyed by the statute. It is next objected that there is a misnomer in the alias summons as published. The plaintiff’s name as appears in the complaint and summons is “II. B. McKnight,” but in some way, when the summons was published, it was made to appear, “H. B. Knight.” The copy of the complaint and summons, as mailed to the defendant by the clerk, appears to have been correct, but the copy as it appeared in the newspaper, left off the first two letters of the name. A mistake like this is not so material, where it occurs in the name of the plaintiff, as it would be if in the name of the defendant. The defendant ordinarily knows whether he has had any business dealings with the plaintiff or not, and whether he is indebted to him or not. If he were sued under a wrong name, he might have some doubt, however, as to whether he was the real person being sued, and in that respect might be misled into a failure to appear at all. We think, under the circumstances of this case, that the mistake was not fatal. (Martin v. Lundstrom, 73 Minn. 121, 75 N. W. 1038.) In publishing the alias summons, the printers seem to have omitted the word “filed,” as it appears in the following sentence of the summons: “You are hereby notified and required to appear in the above-entitled court in the above-entitled cause, to answer the complaint of the plaintiff filed herein.” The sentence as published simply required him “to answer the complaint of the plaintiff herein.” This was not a fatal omission or variance. A defendant has notice that under the statute of this state a summons cannot be issued until a complaint has been filed. The recital that he is required to appear and answer the complaint herein is in substance .as much of a notice that a complaint has been filed as if it said, “answer the complaint filed herein.” “The complaint herein” must necessarily be the complaint in the action in which the summons is issued and from which the statements in the summons are gathered as to the nature of the cause of action. — 640 — Appellant also complains of certain defects in the affidavit made by plaintiff’s attorney for the order of publication. The particular complaint made by appellant against this affidavit is that it fails to show diligence on the part of the plaintiff in his endeavor to find the defendant. This affidavit is too lengthy to be set out in full in this opinion. It is worthy of note here, however, that the affidavit is unusually full and succinct and comprehensive in its statement of the steps taken and the efforts made to find the defendant. It is stated in the affidavit that the affiant, being in the city of Lewiston, talked over the ’phone with the defendant, who was then at Spokane, Washington, and that he also talked with Mr. Smiley, the defendant’s attorney, and that each of them informed affiant of the place of residence of the defendant, and that the same was at Detroit, Michigan, and that the defendant never had resided in the state of Idaho, did not reside in the state of Idaho at that time, and was not within the county of Nez Perce, or state of Idaho at the time affiant was making the affidavit, and that the defendant was then residing at Detroit,. Michigan. Not content with this, the affiant showed that he had caused the summons to be issued, and that it had been returned not served, for the reason that the sheriff could not find the defendant within the state, and that after inquiry he had been unable to find the defendant within the state. There can be but little reason for showing further diligence in finding a defendant, when the plaintiff discovers that he resides in a foreign state. After a plaintiff has once located the defendant, there is not much use in looking for him at any other place at the same time. (Parsons v. Weis, 144 Cal. 415, 77 Pac. 1007; Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34, 13 Pac. 73; Dunlap v. Steele, 92 Cal. 344, 27 Am. St. Rep. 143, 28 Pac. 563, 16 L. R. A. 361.) Numerous other minor questions, have been argued by appellant at great length in connection with the different objections we have just considered, but we do not deem it necessary to take them up in further detail. We find no valid reason why the trial court should have quashed the — 641 — summons or service thereof, and no reason why the judgment should be reversed. Judgment is affirmed with costs in favor of the respondent. Sullivan and Stewart, JJ., concur.