Pioneer Canal Co. v. Akin

Beard, Justice. This case is before the court at this time on two motions of Wyoming Development Company, one of the defendants in error; one to quash the service of summons in error, and the other to dismiss the proceedings in error. Both motions present the same ultimate questions, viz: was the proceeding in error commenced in due time? The Statute, Section 5122, Comp. Stat. 1910, so far as applicable here, reads as follows: “No proceeding to reverse, vacate, or modify a judgment or final order shall be commenced unless within one year after the rendition of the judgment, or the making of the final order complained of.” In this case there is no dispute as to the date the statute com.menced to run, that date being January 6, 1913. The petition in error was filed January 3, 1914, and summons in error was issued the same day and made returnable on or before August 1, 1914, and was served on said defendant in error July 22, 1914. Counsel for the moving defendant in error contend that to constitute the commencement of the proceedings the summons must not only be issued within the year but must, also, be served within sixty days from the date of the origirialsummons. In support of that contention they cite Section 4305, Comp. Stat. 1910, contained [79] in the chapter of the statutes relating to the time of commencing actions, which provides: “An action shall be deemed commenced, within the meaning of this chapter, as to each defendant, at the date of the summons which is served upon him,” etc. Also Section 4306, Id.: “An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this chapter, when the party diligently endeavors to.procure a service;, but such attempt must be followed by service within sixty days.” They argue that those provisions should . be held to apply, by analogy, to proceedings in error; and as the service in this case was not made until July 22, 1914, and more than sixty days after the date of the summons, the proceedings were not commenced in time. The provisions of the statutes which apply to the procedure in civil actions can be resorted to in proceedings in error, where the statute on proceedings in error is lacking in some particular, in which case it has been held that the former may be applied by analogy where applicable. The chapter of the statutes on jurisdiction and procedure in error, Section 5111, reads as follows: “The proceedings to obtain such reversal, vacation, or modification, shall be by petition in error, filed in a court having power to make the reversal, vacation or modification, and setting forth the errors complained of; thereupon a summons shall issue and be served, or publication made, as in the commencement of an action, and a service on the attorney of record in the original case shall be sufficient; the summons shall contain a statement that a petition in error has been -filed in the case; and if issued in vacation, it shall be returnable on or before the first day of the term of the court, and if issued in term time, it shall be returnable on a day therein named; and if the last publication, or service of the summons, be made ten days before the end of the term, the case shall stand for hearing at that term.” Here we have a statute providing for the issuance of summons, prescribing what it shall contain, when it shall be returnable, and on whom it may be' served; but it does not fix any definite length of [80] time after its issuance within which it may be served to perfect the commencement, of the proceedings so as to give the court jurisdiction. The return day is not the same in all cases, being different when the summons is issued in vacation from that when it is issued in term time. In this case the summons was issued in term time, as we take judicial notice that the October, 1913, term had not adjourned for the term on January 3, 1914, and as we constrüe the statute the summons could not legally be made returnable later than the last day of that term, which term would expire by limitation with the commencement of the next term, viz: the first Monday in April, 1914. The true meaning of the language used in the statute, “if issued in term time, it shall be returnable on a day therein named/’ is at first glance not entirely, clear, but when considered in connection with the other provisions of the section it is evident to our minds that the words “a day therein named” mean a named day in the term, and that “therein” refers to the term and not to the summons. In 2 Nash’s Pleading & Practice (4th Ed.) 1243, the author commenting upon this identical statute says: “The summons shall be made returnable on or before the first day of the ensuing term of court, if issued in vacation; if issued in term time, it may be made returnable to a named day in term.” The case of Bechthold v. Fisher, Admr., 12 O. Cir. Ct. 559, is in point. In that case the petition in error was filed June 6, 1896, and summons issued dated the same day and made returnable on or before October 20, 1896, that being the first day'of the term of the Circuit Court of said county. It was received by the sheriff June 8, 1896, and served on the attorney of record of defendant in error on September 28, 1896. The officer was directed by counsel for plaintiff in error not to serve the summons until Ottober 1, 1896. No other summons was issued or served. It was held that the sections of the Ohio statutes corresponding to Sections 4305 and 4306 of our statutes applied to proceedings in error, and that service not having been made within sixty days-from the date of the summons as required by the stat [81] ute, “there was no such service of summons as the law regards sufficient to cause the case to be pending in the circuit court.” Any other construction of the language would leave the time for perfecting the proceedings in error by service on the defendant in error optional, and would in effect destroy the force of the statute limiting the time for commencing such proceedings, if the summons be made returnable- far in the future and if service within the apparent life of such writ would be sufficient. No doubt if the writ in this case, issued as it was in due time, had been made returnable at a proper date and had been served within the life of the writ, although after the expiration of the statutory period for bringing the proceeding, it would have been sufficient. (McDonald et al. v. Ketchum, 53 O. St. 519, (42 N. E. 322) ; Burnap v. Wright, 14 Ill. 303; Rogers v. Redick, 10 Neb. 332, (6 N. W. 413) ; Hendricks v. Sullivan, 28 Neb. 790, (44 N. W. 1135); Omaha L. & T. Co. v. Ayer, 38 Neb. 891, (57 N. W. 567). But in this case the summons was not served until long after it was legally dead, that is, after the time it could legally be made returnable; and service after return day was a nullity. (19 Enc. PI. & Pr. 600, and authorities there cited.) The present case differs in its facts, but we think not in principle, from those arising under the provisions of Section 4306, supra, where the original summons has issued in time and the party has diligently endeavored to procure service, but has failed to do so, and an alias summons has issued. In such cases in those states having the same statutes, or statutes containing substantially the same provisions as Section 4306, it has been held that those provisions apply to proceedings in error. (Ross, Sheriff, v. Willet, 54 O. St. 150, (42 N. E. 697) ; Paving Co. v. Botsford, 50 Kan. 331, (31 Pac. 1106) ; Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476; School District No. 39 v. Fisher, (23 Okl. 9) 99 Pac. 646; Kilgore v. Yarnell, (24 Okl. 525), 103 Pac. 698.) If in a case where there has been a failure to procure service of the original summons and an alias is issued it must be served within sixty days from the [82] date of the original in order to constitute the commencement of the action as of the date of the original summons, we are unable to discover any reason why an original summons must not likewise be served within sixty days from its date to have that effect, or why the sixty-day limit should not apply equally to both cases. Our conclusions are, that a summons in error when issued in term time should be made returnable on some day during the possible life of that term as limited by statute, that is, on some day before the first day of the ensuing term; and that the summons in this case could not legally have been made returnable at a later date, and not having been served within the legal life of the writ, and no service of summons having been made upon said defendant in error within sixty days after the time for commencing proceedings in error had expired, the proceedings were not commenced in time as to said defendant in error. So concluding, the motions will have to be sustained and the proceedings in error dismissed as to said defendant in error, Wyoming Development Company; and it is so ordered. Dismissed as to Wyoming Development Company. Potter, C. J., and Scott, J., concur.