Brooks v. Orchard Land Co.

SULLIVAN,-J. This is an appeal from an order denying a motion to vacate and set aside a judgment entered on default. The plaintiff commenced this action on the 24th of September, 1909, to quiet title to a certain tract of land aggregating 4,630 acres, situated in Ada county. It is alleged that the lands were duly assessed to the defendant, the Orchard Land Company, Ltd., for the year 1903, for state, county and school district purposes, and that the taxes amounted to $193.80; that said taxes were not paid and said land was thereafter sold by the tax collector to Ada county and a tax certificate was issued therefor; that thereafter the county sold the same to the plaintiff and a tax deed was issued to respondent, and that since said date the plaintiff has been the owner and in the actual possession of said land. It is also alleged that the defendants claim an estate and interest therein adverse to plaintiff, which is alleged to be without any right whatever. Then follows the usual prayer for relief in actions to quiet title. Summons was issued on September 24, 1909, and thereafter on the next day the sheriff of Ada county returned said summons and certified in his return that the defendant was a corporation and that its principal place of business and principal office is at Orchard in Ada county, that the president, sec — 215 — retary and treasurer and managing agent of said corporation have and each of them has removed and ceased to be a resident of the state of Idaho, and have been absent from the state for more than five years last past. It is recited that the sheriff made the service, on ascertaining the above facts, by delivering a copy of the summons, together with a copy of the complaint in the action, to William L. Cuddy, Esq., auditor of said county, etc. Thereafter on October 16, 1909, the defendant not having answered, its default was entered and upon the same day the plaintiff made her proofs and was adjudged to be the owner of the property described in her complaint. and her title thereto was quieted. On October 13, 1910, and within one year from the date of said judgment, the defendant filed and served its notice of motion and application to set aside and vacate said judgment and made application to be allowed to answer the complaint and defend the action. The application was based upon the affidavit of Edgar Wilson, Esq., and the verified answer of the defendant. After setting forth the facts in said affidavit, affiant avers that the defendant has a good defense to the cause of action stated in the complaint, and that while a copy of the summons and copy of the complaint had been served upon William L. Cuddy, Esq., auditor of Ada county, the same had not been delivered to the defendant. The verified answer sets up a good defense to said cause of action, and it is not necessary to repeat the denials of the answer and the averments and allegations of the cross-complaint which was filed with said answer. After the hearing the court denied the" application on the ground that more than six months have elapsed since the adjournment of the term of court at which said judgment was entered and before the filing of the notice of motion to vacate said judgment and to set aside said default, and it is further stated in said order, as follows: “That the service upon the auditor of Ada county was equivalent to personal service and by reason of the premises the court has no jurisdiction to vacate and set aside the said judgment and decree.” It clearly appears that the trial court considered that service — 216 — upon the auditor of Ada county was personal service upon the officers of the corporation within the meaning of the term “personally served on the defendant” as used in sec. 4229, Rev. Codes. The first part of said sec. 4229 authorizes amendments upon such terms as may be proper and relief against mistakes in pleadings. The next part of the section provides for the relief of a party from a judgment or order taken against him through mistake, inadvertence, surprise or excusable neglect. Such application, however, must be made “within a reasonable time, not exceeding six months after the adjournment of the term.” The next part of said section, and upon which the appellant relies, is as follows: “When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant, or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.” The relief granted by the clause last quoted applies only to actions where there has not been personal service. The first provision of said section, under which application for relief must be 'made within six months after the adjournment of the term, evidently has reference to cases where the court had jurisdiction of the parties either by personal service or appearance in the action, and where the judgment was nevertheless taken against such parties “through mistake, inadvertence, surprise or excusable neglect.” Then we have in this ease a judgment by default based upon service of summons and complaint upon the county auditor, and we have a statute permitting such service upon the showing that there is no officer or officers of the defendant corporation within the jurisdiction upon whom service could be made (sec. 4144, Rev. Codes); and also a statute authorizing the court to permit a defendant or his legal representative at any time “within one year after the rendition of any judgment in such action, to answer to the merits of the original action, when from any cause the summons in the action has not been personally served on the defendant.” — 217 — The question directly presented is: Was a copy of the summons and complaint in this action “personally served” on the defendant by serving them upon the county auditor? The delivery of a copy of the summons and complaint to the officer or officers of the corporation designated by the statute upon whom service could be made would undoubtedly be “personal service” upon the corporation, and when service was thus made, it would naturally follow that the defendant corporation was “personally served.” The statute specifically names the officers upon whom such service may be made, and in the absence of such designated officer or officers from the state, the statute provides for service of summons “by delivering a copy of the summons and a copy of the complaint to the auditor of the county in which the principal business office of such corporation is located according to its articles of incorporation, in the same manner and with the same effect as though such service had been made upon any of the above-mentioned officers or agents of such company.” Where service is made in this way, the law makes it the duty of the auditor to forward by registered mail to any such officer or agent of the company whose address may be known to him such copy, but no failure on the part of the auditor to mail such copy of the summons shall affect the validity of the service thereof, and it is insisted that this method of service was merely a substitute service and not personal. It is conceded that for the purpose of entering judgment, either method of service would have the same effect — would give the court jurisdiction — though one would be “personal” and the other a substitute service. See. 4144, Rev. Codes, provides the method for service upon domestic corporations and upon foreign corporations and upon minors and upon persons of unsound mind and upon counties and towns, and in all other cases it must be made upon “the defendant personally” or by leaving a copy thereof and a copy of the complaint in the cause at the usual place of abode of the defendant with a member of the family over the age of twenty-one. For the purpose of entering judgment, the service by leaving a copy thereof with a member — 218 — of the family has the same effect as by delivering the same to the defendant, personally, bnt it is contended that the leaving of such copies would not be “personal” service. When the statute requires personal service of process or that process shall be personally served, we think there is a general agreement among the most of the courts of last resort that such service must be actual and personal upon the parties served. The statutes of the several states provide different modes of personal service, viz., either by delivering the original personally or by reading or exhibiting the original and leaving a copy or by delivering a true copy personally, etc. (See Wade on the Law of Notice, sec. 1339.) Sec. 4144, Rev. Codes, provides that in all other cases than those previously named in said section, the process must be delivered to the defendant “personally” or by leaving a copy thereof, etc. The statute does not declare that leaving a copy at the usual place of abode of defendant is personal service. We do not think that defendant is “personally served” within the meaning of said section of the statute where the process is served by leaving a copy thereof at the usual place of abode of the defendant. While there is no doubt that such service has the same effect under the statute as “personal service,” we do not think it is “personal” service, but that it is a service substituted for personal and has the same effect as personal service so far as all future proceedings in the action are concerned, in regard to the trial of the case and entry of judgment. By the amendment of the seventh subdivision of said sec. 4144 (Sess. Laws 1909, p. 185), said subdivision is made to read as follows: “In all other cases, to the defendant personally.” That part of the section which permitted the service to be made by leaving a copy of the process at the usual abode of the defendant with a member of the family over twenty-one years of age has been left out entirely. In see. 1343, Wade on Notice, 2d ed., under the head-note, “Service at Place of Abode,” the author says: “We now come to the consideration of a species of service which has been denominated ‘personal’ to distinguish it from service by mail; and substituted, as contradistinguished from service — 219 — strictly personal. It has also been called both actual and constructive service. It is made by leaving the original or a copy at the usual place of abode of the party to be served, with someone other than himself.” The author cites cases of notaries giving notice of protest of negotiable paper and also the case of Chittenden v. Hobbs, 9 Iowa, 417, where the court distinguishes between personal service and service by leaving a copy at the abode of the defendant. In that case the court said: “To authorize the substituted service, or service by copy left at the residence of the defendants, it should appear affirmatively from the return that defendants were not found.” In sec. 1345, Wade on Notice, the author, referring to service by leaving a copy at the residence of the defendant, says: “However, it is quite certain that though this method of service may be very liberally viewed for some purposes, yet it is, in no instance, regarded with the same favor as service strictly personal.” In In re Risteen, 122 Fed. 732, it is said: “Personal service ordinarily means service upon the defendant personally and does not include service by leaving a notice at his last and usual place of abode,” and then holds that in the bankruptcy act, where it is provided that a copy of the petition shall be served on the defendant personally or by leaving the same at his last and usual place of abode, that service by leaving a copy with the clerk of the hotel, of which the bankrupt was proprietor, and where he usually resided, was sufficient personal service within the terms of such act. In First National Bank v. Holmes, 12 N. D. 38, 94 N. W. 764, referring to the statute of that state authorizing the service of summons on residents of the state by leaving a copy at the dwelling-house in the presence of members of the family, the court says: “This provision authorizing substituted or domiciliary service must be held to authorize this mode of service in cases of residents only. Such substituted service is not strictly personal service. The statute provides that such service ‘shall be taken and held to be personal service,’ but the statute gives — 220 — such substituted service the force and effect of personal service in eases of such service within the state only. The term ‘personal service’ has a fixed and definite meaning in law. It is service by delivery of the writ to the defendant personally. Other modes of service may be given the force of such service by legislative enactment. But the use of the words ‘personal service,’ unqualified, in a statute, means actual service by delivering to the person and not to a proxy.” To the same effect is Hobby v. Bunch, 83 Ga. 1, 20 Am. St. 301, 10 S. E. 113. In Conway v. Campbell, 38 Mo. App. 473, the court held that personal service meant “delivering direct to the person notified,” and in Fernandez v. Perez, 220 U. S. 224, 31 Sup. Ct. 412, 55 L. ed. 443, the supreme court of the United States held that the words “actually personally notified” in the statute relating to service of process meant personal service of the process upon the defendant. Moyer v. Cook, 12 Wis. 335, under the provisions of sec. 27, chap. 132, Rev. Stats. 1858 of Wis., authorized an entry of judgment by the clerk only on filing proof of “personal service.” Sec. 9 of chap. 24, provides that summons shall be served by delivering a copy “to the defendant personally,” or, if not found, 'by leaving it at his usual place of abode, etc. In passing upon the meaning of the term “personal service,” the court said: “We think the personal service required'by sec. 27, chap. 132, is only that where the copy is delivered to the defendant personally, as required by sec. 9, chap. 124, and not that where it is left at his place of abode.” While some of the cases above cited may not be directly in point, they bear to some extent on the question under consideration. Counsel for respondent cite in support of their contention the ease of Dunkle v. Elston, 71 Ind. 585. As appears from the foregoing cited authorities, the term “personally served” means serving the process upon the defendant personally, and we think when the legislature enacted said sec. 4229 and provided that “When from any cause the summons in an action has not been personally served on the — 221 — defendant, the court may allow, on such terms as may be just, such defendant, or his legal representative at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action,” it intended that the term “personally served” should apply only to summons that has been served personally, and not to service made by leaving a copy of the summons at defendant’s usual place of abode. Personal service may be made upon a corporation by serving the proper officer of such corporation or its designated agent, and we do not think the service is “personal” where it is made upon the auditor of the county, as authorized by the provisions of sec. 4144, and when not made upon the proper officer of the corporation or its designated agent, we do not think the summons has been “personally served” within the meaning of that term as used in said sec. 4229. Where the legislature has provided that the process may be served upon the county auditor, that is a substitute' for personal service and equivalent to it as far as the trial of the case and entering a judgment is concerned, but does not prevent such corporation from making application for setting aside a default judgment that has been rendered against it on service of summons upon the county auditor, within one year from the date of such judgment, provided such county auditor is not its designated agent. The provisions of said see. 4229, under consideration, must be construed with the provisions of said sec. 4144 providing for the service of summons, and in the seventh and last subdivision of said sec. 4144, it is provided that service of summons in all other cases than those mentioned in the preceding six subdivisions must be served by delivering a copy thereof “to the defendant personally” or by leaving a copy thereof at his usual abode. It is not declared in said section that the leaving of a copy at the abode of the defendant is personal service or that the summons is “personally served” when so left. While such service is no doubt equivalent to personal service in regard to giving the court jurisdiction, it is not strictly personal service, and the legislature in said see. 4229 was very careful to use the term “personally served,” and — 222 — where default judgment was taken against a defendant not “personally served,” he might make application to set aside the default and answer on the merits within one year from the date of the entry of the judgment, and there appears to be good reason for giving a defendant more time in which to make application to open a default where he is not personally served than where he is. We have had a number of cases in this court where it has been made to appear that the defendant who had not been personally served had no knowledge whatever of the action. or the judgment being taken against him until more than six months after the judgment had been entered. In the case at bar the service was made on the auditor of Ada county and tbe auditor retained the copies, as he did' not know where to send them, and we do not think it could be claimed on any ground whatever that said copies were “personally served” on the defendant corporation. When a person is personally served, he certainly knows of the service, and where he is served by leaving the summons with the county auditor, he may have no notice whatever of the pending action. If the legislature should declare that such substituted service was in effect personal service, that no doubt would make it so, so far as the jurisdiction of the court was concerned, but it would not and could not make such service strictly personal any more than it could make service by publication of summons personal simply by declaring such service to be personal service. It is next contended by counsel for appellant that the trial court denied said motion upon jurisdictional grounds alone, and that if the defendant was not personally served, it is entitled, as a matter of right, to have the decree set aside and default opened under the clause of said sec. 4229, above quoted. It is contended that under the first clause of said section the court is permitted to vacate the judgment “in its discretion,” but under the second clause, the words “in its discretion” are omitted, the only condition imposed on granting the motion being “on such terms as may be just.” We cannot agree with that contention of counsel. — 223 — We think it is in the sound discretion of the court whether or not it opens the default and permits the defendant to answer within one year, and as held in Pearson v. Fishing co., 99 Cal. 425, 34 Pac. 76, the exercise of the mere discretion of the court ought to tend, in a reasonable degree, at least, to bring about a judgment on the merits of the case. But that discretion ought not to be exercised in favor of the applicant unless a reasonable showing be made. (See Humphreys v. Idaho G. M. & Dev. Co., ante, p. 126, 120 Pac. 823.) This case was decided wholly on a question of law and not of fact. The sufficiency of said application is not before this court, and since the trial court based its order denying said application on the ground that it was not made within six months after the adjournment of the term, and not on the ground that the showing made by the applicant was not sufficient to warrant the court in opening said default, the order and judgment must be set aside and the cause remanded to the court, with instructions to pass upon the sufficiency of said application and determine whether the showing is sufficient to warrant the court in setting aside the default judgment. A sufficient showing should be made, before the court is authorized to grant an application to set aside a default judgment, and that rule applies to this ease as well as to all others where application is made to set aside a default. The cause is remanded to the trial court, with instructions to pass upon the sufficiency of said application and make the proper order upon the determination of that question. Costs awarded in favor of appellant. Ailshie, J., concurs.