State ex rel. Martin v. Justice Court of Elko Township

By the Court, Ducker, J.: This is an appeal from an order of the Fourth judicial district court, overruling the appellants’ demurrer to a petition for a writ of review, and from the judgment entered thereon, reversing and annulling the judgment of the justice of the peace in an action entitled H. Sutton, plaintiff, v. Kirk E. Martin, defendant. The portion of the record containing the return made by the justice of the peace to the writ of certiorari issued by the district court shows that the action was instituted in the justice court of Elko township, Elko County, Nevada, and that summons was personally served on the defendant in White Pine County, Nevada, April 5, 1919. On April 26, 1919, a default was taken, and judgment entered against the defendant and in favor of the plaintiff. Thereafter on the same day a demurrer was received through the mail by the justice and filed. An execution was issued on the 26th day of April, 1919, and the return of the justice, as it was subsequently completed pursuant to a stipulation entered into by counsel for the parties, shows that the execution was duly levied and the judgment satisfied except as to a small portion thereof. The unsatisfied portion was waived by the judgment creditor, as appears by the [144] return to the execution. It appears from the record that the copy of the complaint served with the summons was not certified by the justice of the peace or the plaintiff’s attorney. For this defect the district court held that the justice court was without jurisdiction to enter a default judgment, and annulled the same in the certiorari proceedings. The sections of the Civil Practice Act, so far as they are applicable to the quéstion, read as follows: ' “The summons may be served by a sheriff or constable of any of the counties of this state, or by any other person of the age of tweny-one years or over, not a party to the action, and said summons must be served and returned, as provided in chapter 8 of this act, or it may be served by publication. * * * ” Section 790, Civil Practice Act, as amended, Stats. 1913, p. 360. “The summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by any citizen of the United States over twenty-one years of age; and, except as hereinafter provided, a copy of the complaint, certified by the clerk or the plaintifffs attorney, shall be served with the summons. * * * ” Section 80, Civil Practice Act, as amended, Stats. 1913, p. 109. 1. The exception mentioned in the last section clearly refers to service by publication. In all other cases the copy of the complaint served with the summons must be certified by one of the persons designated in the statute. This is the plain import of these sections of the Civil Practice Act. The law does not provide for a clerk in the justice court, but as the justice, in addition to his judicial duties, is required to perform all duties of a clerical nature, it seems quite obvious that the legislature intended that this officer could make the certificate required for- a proper service of summons in justice court cases. Marooney v. McKay, 3 Or. 373. 2. Did the failure of respondent’s attorney to certify the copy of the complaint accompanying the summons in this case, or cause it to be certified by the justice of [145] the peace, deprive the justice court of jurisdiction to enter the judgment against respondent? We are of the opinion that it did. This requirement is one of substance, designed to assure the defendant of the authenticity of the copy of the complaint served, which informs him of the nature of the accusation and the judgment demanded. It can no more be dispensed with than other statutory requirements essential to a proper service of summons. 3. Statutory provisions prescribing the method by which a resident defendant shall be notified that an action has been commenced against him in a justice court, to the end that jurisdiction of his person may be obtained, are mandatory, and must be strictly pursued, and failure to observe them in any material manner will prevent the court issuing summons from obtaining jurisdiction of the person of the defendant. Regean v. Harrington, 31 Mont. 294, 78 Pac. 484, 485. See, also, McMillan et al. v. Reynolds, 11 Cal. 372. 4. Appellants contend that the defendant’s general appearance, made by filing a demurrer in the cause, was a waiver of any objection to sufficiency of the service. That a party who appears generally by demurrer cannot subsequently complain of want of proper service of summons upon him is a uniformly recognized rule, but applicable only where such general appearance is made prior to the judgment or other proceedings, questioned' on account of such defective service. In this case the demurrer was presented and filed after the time to answer had expired, and after default and judgment had been duly entered. The judgment was rendered without any previous valid service of. summons upon the défendant, and for this reason was not merely voidable, but void. The subsequent filing of the demurrer could not therefore operate retrospectively to give life to a void judgment. 5. Appellants assert that there is another plain, speedy, and adequate remedy, and on this ground deny respondent’s right to invoke the remedy of certiorari. [146] Section 5742 of the Revised Laws, it is said, furnishes this remedy. The only portion of the section which might be considered applicable reads: “The court may also, on such terms as may be just, and on the payment of costs, relieve a party from,,a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect, but the application for such relief must be made within ten days after notice of the entry of the judgment and upon an affidavit showing good cause therefor.” 6. The district court held that this provision did not apply to a judgment wholly void for the lack of jurisdiction of the person of the defendant, and we think the court was right in this conclusion. A defendant against whom such a judgment has been rendered is entitled to be relieved from its effects without being penalized to any extent. So it is clear from the provisions of this statute, providing terms and the payment of costs as conditions ' of relief from a j udgment by default taken against a party by reason of his mistake, inadvertence, surprise, or excusable neglect, that judgments'void for want of jurisdiction are not within the scope of the statute. A party's right to relief from such a void judgment is absolute, and not dependent upon any of the elements of excuse enumerated in the statute; nor is it dependent upon any showing as to a meritorious defense, which must appear in the affidavit showing good cause for relief, as required in said section 5742. 7. It is insisted that, because the judgment of the justice court was satisfied and discharged before the rendition of the judgment herein appealed from, certiorari cannot lie to annul the former judgment. We are not impressed with this contention. While the ruling on this point in the case of State ex rel. Reynolds v. Laurendeau, 27 Mont. 522, 71 Pac. 754, cited by appellants, seems to be in accord with the position taken by them, the contrary view is, in our opinion, maintained by the weight of better authority. Passing upon the [147] question in Clark v. Ostrander, 1 Cow. (N. Y.) 437, 13 Am. Dec. 546, the court said: “The settlement and set-off of the judgment does not supersede the certiorari. The defendant, in the small judgment, did no more than he might have been compelled to do by execution. He paid it, but this will not prevent a certiorari.” In 24 Cyc. 767, 768, the rule is thus stated: “It is no objection to the issuance of a writ of certiorari * * * that the judgment has been paid.” And again in 5 R. C. L. 258: “It sometimes occurs that the petitioner does not seek relief by certiorari until the judgment rendered against him has been satisfied, but even this will not prevent the issuing of a writ of certiorari, or supersede one already brought.” No sound reason can be advanced why a judgment void for want of jurisdiction cannot be set aside in certiorari proceedings, solely because satisfaction of such judgment has been coerced by execution or the judgment otherwise paid. The judgment appealed from is affirmed..