Turpin v. Taylor

Beck, J. (After stating the foregoing facts.) 1. We are of the opinion that the court did not err in refusing to dismiss the suit upon the motion of the plaintiffs in error. The motion was general, and meant that the court was called upon to dismiss the entire suit. This could not have been done under the circumstances, in any event, because numerous defendants in the [227] suit appeared and answered in response to the suit under the process as it stood when process was issued. Certainly as to them the suit should not have been dismissed. Section 5569 of the Civil Code, providing for cases where processes are delivered too late, declares: “If the process is delivered to the sheriff, or his deputy, too late for service within the time specified, he shall return the same, with an entry stating the truth of the case; and if the defendant can not be found, and does not reside within the county, the slierifE shall make return of the fact in the same manner.” And the succeeding section declares: “Whenever process is not served the length of time required by law before the appearance term, such service shall be good for the next succeeding term thereafter, which shall be the appearance term.” And in section 5572 it is provided: “No technical or formal objections shall invalidate any petition or process; but if the same substantially conforms to the requisitions of this Code, and the defendant has had notice of the pendency of the cause, all other objections shall be disregarded: Provided, there is a legal cause of action set forth as required by this Code.” Under the provisions of these sections and the decisions of this court construing and applying them, and under the special facts of this case, we think it was entirely proper for the court to refuse to dismiss the case and allow an amendment of the process. We say under the special facts of this case, because we do not care now, and it is not necessary, to make a ruling as to what would be the effect of arbitrary or capricious interference by counsel who had filed a suit in time for the next term of court and who by such interference should prevent the issuance and service of process in due time according to the provisions of the statute. But in the present case, upon the showing made by plaintiffs and their counsel in response to the motion to dismiss, the court was authorized to find that counsel had acted in good faith and in pursuance-of the spirit of the order previously granted by the court allowing a period of time during which the defendants named in the suit might settle the demand against them, which period of time allowed for a settlement extended up to the 10th day of October, 1912, and which was afterwards extended to the 20th day of October; and immediately after the expiration of this extended period allowed for settlement, counsel for -plaintiffs directed the issuance of the process, and the clerk of the court immediately acted in pursuance of that [228] direction. As above said, many of the defendants named appeared at the November term and answered without questioning the validity of the process, and thereby waived any question of its validity. Under these circumstances the entire case should not have been dismissed. The court took a step in the right direction in allowing the amendment of the process; it was a saving of the cost, expenses, and time.which would have been involved in a dismissal of the suit as to the plaintiffs in error here and a bringing of the case' anew.against them. But we think that the court should have taken one other step, and should have directed service to be made anew of the suit, with the amended process attached, upon the defendants who made timely objection to the process as it stood. But the failure of the court to take this further step which we have indicated as the proper one should not be permitted to work a dismissal of this case; and we therefore direct, that, at the term of the court below at which the remittitur from this court shall be made the judgment of .that court, the process be so amended as to be returnable to the next succeeding term of court, and that service be made anew upon the plaintiffs in error, so that they may make the defense which they have to the merits of the case at a term of court to which they are regularly summoned to appear. 2. While the court did not err in refusing to dismiss the case upon motion of plaintiffs in error, but rightly retained the cause and allowed the process to be amended, the plaintiffs in error were not properly before the court at that time, so as to. give the court jurisdiction to decide the questions made by the demurrers filed by the plaintiffs in error subject to the rulings of the court upon a motion to dismiss, and the action taken by the court upon the demurrers must be treated as nugatory; consequently, no ruling is made upon the exceptions in the main bill or the cross-bill of exceptions, assigning error upon the court’s rulings on the several grounds of demurrer. Direction having been given that the plaintiffs in error be served anew under the amended process, the complaining parties will, when they are brought before the court under the new service, have the right at the first term after such service to submit their demurrers for decision. Judgment on main bill of exceptions affirmed, with direction. Gross-bill dismissed. All the Justices concur, except Fish, O. J., absent.