Sanford v. Edwards

Pemberton, C. J. The first question presented by this appeal is as to whether the constable’s service of the summons issued by the justice was void. If the service of the summons was void, then it will not be disputed that the judgment of the justice, on which this suit is brought, was and is void also, as well as all proceedings thereunder. Section 744, Code of Civil Procedure, Compiled Statutes, 1887, in force at the time of the service of the summons in question, and which must govern in the determination of the [59] case, after prescribing the manner of service of summons on corporations, minors, persons of unsound mind, etc., in subdivision 4 provides for service of summons in cases like the one under discussion, as follows : “In all other cases, by reckling the same to the defendant personally, or by leaving a copy at his place of residence. ” It is conceded that in this case the constable did not read the summons to the defendant personally. In Brown on Jurisdiction, section 41, page llO, it is said : ‘ ‘ When the statute provides the form of service or mode of obtaining it, that mode must be pursued strictly.” Statutes prescribing the manner of service are mandatory, not directory. (Wells on Jurisdiction of Courts, § 97; Freeman on Judgments (4th Ed.) § 125.) In Robbins v. Clemmens, 41 Ohio St. 285, under a statute requiring service to be made by delivering a copy, service was made by reading the summons to the defendant; the court held the service void, and that a judgment rendered on such service could be attacked collaterally. In Newlove v. Woodward, 9 Neb. 502, the court held that ‘ ‘ a summons must be served upon a defendant in the mode provided by the statute, in order to give the court jurisdiction, unless the defendant by an appearance waive the defect.5 ’ To the same effect see Campau v. Fairbanks, 1 Mich. 152; Young v. Capen, 7 Mich. 287. In Grand Tower v. Schirmer, 64 Ill. 116, the court says : ‘ ‘ The officer making the service was bound to pursue the requirements of the statute. He is not invested with power to substitute another and different mode from that pointed out in the statute.” See, also, McCoy v. Crawford, 9 Tex. 353; Hart v. Gray, 3 Sumn. 339; Mattison v. Smith, 37 Wis. 333. In fact the authorities, if not absolutely uniform upon this question, seem to largely and strongly support the view that such service as we are here discussing is void, and that the judgment rendered thereon is necessarily void also. We, at least, have been shown no authority to the contrary by coun [60] sel for respondent, nor has our attention "in any manner been called'to any such authority. We are, therefore, of the opinion that the constable’s service of the summons issued by the justice was void, and gave the justice no jurisdiction of the defendant. The court permitted the constable to testify in this case that he served the summons issued by the justice upon the defendant by delivering a copy thereof to her personally at the door of her residence. This is assigned as error. WTe think the action of the court was erroneous. The constable might, we think, have amended his return to show service in compliance with the requirements of the statute — if the facts warranted such amendment — in the justice court, where the original proceedings and judgment were had and entered. But in this suit, commenced in the district court, we do not think it was permissible to prove or show the manner of service in the justice’s court by parol testimony. This parol offer of evidence was not an offer or effort to amend a return to conform to the facts, so as to show service in conformity with the statute — if such amendment could have been made in the district court. It was an attempt in one case and court to show by parol evidence that such service of summons was had on a defendant in another case and court as would authorize such other court to render the judgment in controversy. We think the admission of parol evidence to establish such fact was error. • (§ 77 Code of Civil Procedure, Compiled Statutes, 1887; Settlemeier v. Sullivan, 97 U. S. 444; Botsford v. O'Connor, 57 Ill. 78; Wellington v. Gale, 13 Mass. 483; Miller v. Plue, 64 N. W. 232; Brown v. Gaston, 1 Mont. 57; Dyas v. Keaton, 3 Mont. 495; Sawyer v. Robertson, 11 Mont. 416.) We regard this question as settled by the great weight of authority in accordance with the foregoing view. If there are respectable-authorities to the contrary, our attention has not been called to them. " 1 Counsel for appellant concedes that the'1 question of suing the defendant by a wrong Christian name in the justice’s [61] court is unimportant, and of itself would be unavailing on this appeal. The judgment and order appealed from are reversed. Reversed. De Witt, J., concurs. Hunt, J., disqualified.