Clause v. Columbia Savings and Loan Association
In Clause v. Columbia Savings and Loan Association, 16 Wyo. 450, 95 P. 54 (1908), the plaintiff, Columbia Savings and Loan Association, filed suit against the administrator of Robert O'Malia's estate for monies owed on a note.
At that time, Wyoming law provided that a summons was generally to be directed to and served by the county sheriff; however, when the sheriff was named in the petition as a party defendant, the duty of serving and executing process devolved upon the coroner. Rev.St. 1899, 3509, 3513 & 1172.
The sheriff was named as a defendant in this case, so service of the summons was accomplished by the county coroner on the administrator two days after the action was filed.
The administrator "filed a motion to quash the service and summons on the ground that, though the sheriff was named as a defendant, it appeared from the allegations of the petition that he was neither a proper party nor interested in the action, and that the process had been improperly directed to and served by the coroner." Clause, 95 P. at 56.
The district court quashed service. Later, plaintiff filed an amended petition and summons was completed on the administrator by the sheriff. The matter proceeded to trial and judgment was awarded against the administrator. Clause, 95 P. at 57.
On appeal, one of the issues before the court was whether the suit was barred under the applicable statute of limitations. Clause, 95 P. at 58-59.
The administrator contended that the statute of limitations concerning actions upon a contract in writing had expired during the interim between the quashing of the summons and the filing of the amended petition.
He argued that the summons and service thereof was not sufficient for the commencement of the action and, thus, the action could not be re-filed under the provisions of the saving statute.
The court first considered the effect of the statutes defining when an action was commenced:
Within the meaning of the limitation statutes it is declared that "an action shall be deemed commenced . . . as to each defendant, at the date of the summons which is served upon him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him; and when service by publication is proper, the action shall be deemed commenced at the date of the first publication, if the publication be regularly made." (Rev.St. 1899, Sec. 3461.) And that "an attempt to commence an action shall be deemed equivalent to the commencement thereof . . . when the party diligently endeavors to procure a service; but such attempt must be followed by service within sixty days." Id. Sec. 3462. . . .
The question is not affected, in our opinion, by section 3462, making an attempt to commence an action followed by service within sixty days equivalent to the commencement thereof; for here service was obtained upon the summons issued, and if the action was not commenced by the issuance and service of that summons, section 3465 the saving statute would not apply, and there would be no extension of the statutory period. But if the action was commenced, then section 3465 applies if there was a failure by the plaintiff otherwise than upon the merits. The court had unquestioned jurisdiction of the subject matter of the action, so that, if the service of the summons by the coroner conferred jurisdiction over the person of the defendant, the action must be held to have been commenced.
(Clause, 95 P. at 59-60.)
In rejecting the administrator's argument, the court continued by focusing on whether the defect in the summons and service was void or voidable:
The mere fact that the service was quashed does not determine the question, for it is not every irregularity or imperfection in a summons or the service thereof which will deprive the court of jurisdiction, though it may justify or require the setting aside of service upon motion, or the reversal of a judgment upon a proper application. To have the effect of failing to give jurisdiction the summons or service must be so radically defective that it would authorize a collateral impeachment of a judgment rendered thereon; that is to say, it must be void, and not merely voidable. . . .
It is to be remembered that, when the sheriff is a party to the case, the coroner is required to serve process and perform all other duties of the sheriff. In this case as originally brought the sheriff was named as a party defendant. Had no question been raised as to parties, his name might have been retained as a party to the case. To determine the insufficiency of the summons and service it was necessary that the court look into the petition and the allegations thereof to ascertain and adjudge whether or not he had been properly named as a defendant. Had the plaintiff in error here, who had been joined with the sheriff as a defendant, not objected, we do not think that upon collateral attack, the judgment could have been held void on the ground of defective process because the sheriff had been improperly made a party. The coroner being an officer, authorized under certain circumstances to serve process, we are satisfied that service by him, though improper, and furnishing a reason for quashing service upon objection, or for reversal of the judgment, in case of the erroneous overruling of such an objection, does not have the effect of rendering the judgment absolutely void, or throwing it open to collateral impeachment, where, at least, the sheriff appears to have been named as a party to the cause.
The summons and service not having been void, but voidable only, the action was commenced within the meaning of section 3465. Upon the quashing of the service there was a failure otherwise than upon the merits, thus rendering Section 3465 applicable.
(Clause, 95 P. at 59-60.)