NO. 8 9 - 1 2 1
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
VIOLET LIVINGSTON,
Plaintiff and Appellant,
TREASURE COUNTY, a political
subdivision of the State of
Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial g s t r ~ q ,
t
--I
In and for the County of Yellowstone,
The Honorable ~ i a n e Barz, Judge presiding.
G.
COUNSEL OF RECORD:
For Appellant:
John J. Cavan; Cavan, Smith, Grubbs & Cavan, ~illings,
Montana
For Respondent:
Calvin J. Stacey; Keefer, Roybal, Hanson, Stacey &
Walen, ~illings,Montana
Lee Kerr, Treasure County Attorney, Hysham, Montana
Submitted on Briefs: July 7, 1 9 8 9
Decided: November 6, 1989
Filed:
Clerk
~usticeWilliam E. Hunt, Sr., delivered the Opinion of the
Court.
plaintiff Violet ~ivingston appeals from a judgment of
the District Court of the Thirteenth Judicial District,
Yellowstone County, dismissing her complaint against
defendant Treasure County. We reverse and remand.
The sole issue raised on appeal is whether the District
Court erred in dismissing the complaint because the return of
service was not filed with the clerk of court within three
years after the commencement of the action.
On November 27, 1985, plaintiff filed a complaint
against defendant, alleging personal injuries due to the
negligence of defendant's employees. Summons was issued on
the same day.
Three years later, on November 27, 1988, plaintiff
delivered the summons and complaint to the sheriff, who
served defendant on that day. plaintiff filed the summons
and return with the District Court on December 20, 1988.
On December 14, 1988, defendant filed a motion to
dismiss. The District Court granted the motion, concluding
that under Rule 41 (e), M.R.civ.P., the action could not be
prosecuted because the summons and return were not filed with
the clerk of court within three years after commencement of
the action. plaintiff appealed to this Court.
At issue in this case is Rule 41(e), M.R.civ.P., which
provides in pertinent part:
No action heretofore or hereafter commenced shall
be further prosecuted as to any defendant who has
not appeared in the action or been served in the
action as herein provided within 3 years after the
action has been commenced, and no further
proceedings shall be had therein, - - actions
and all
heretofore or hereafter commenced shall be
dismissed 4241 the court in which the same shall ha=
been commenced, on its own motion, or on the motion
of any party interested therein, whether named in
the complaint as a party or not, unless summons
shall have been issued within 1 year, or unless
summons issued within one year shall - - have been
served and return - - filed - - clerk of
made and with the
the court within 3 years after the commencement of
r
sald action, or unless appearance has been by t G
defendant or defendants therein within said 3
years. (Emphasis added. )
The literal language of the rule requires an action's
dismissal if the plaintiff fails to serve the defendant and
file the return within three years of the commencement of the
lawsuit. We do not believe, however, that such a harsh
result is warranted in a case such as this, where plaintiff
has served defendant on the last permissible day but has
failed to file the return with the clerk of court until
approximately one month after three years have elapsed.
The purpose of Rule 41(e), M.R.civ.P., is to ensure that
actions are timely prosecuted. See State ex rel. Equity
Supply Co. v. ~istrictCourt (1972), 159 Mont. 34, 494 P.2d
911. Indispensable to the timely prosecution of an action is
the service of the summons and complaint. Service of the
summons is the means by which the district court acquires
personal jurisdiction over the defendant. linto on v. ~ i l l e r
(1951), 124 Mont. 463, 478, 226 P.2d 487, 495; Haggerty v.
Sherburne Mercantile Co. (1947), 120 Mont. 386, 392, 186 P.2d
884, 889. Service is also essential to due process as it
notifies the defendant of the pendency of an action against
him thereby giving him the opportunity to defend himself or
his property. Clinton, 124 Mont. at 478, 226 P.2d at 495;
Haggerty, 120 Mont. at 396-97, 186 P.2d at 891.
~ i l i n g the return, on the other hand, is simply a
ministerial act. The return itself is merely evidence of
service of the summons and complaint. linto on, 124 Mont. at
479, 226 P.2d at 495. It is filed with the court only to
document on the record the fact that service has been
completed.
In this case, the plaintiff's failure to file the return
neither hindered nor delayed prosecution of the action. Nor
did it affect the validity of service.
We note that other rules governing proof of service
provide that "[flailure to make proof of service does not
affect the validity of the service. " Rules 4D (8)(e) and
5(f), M.R.civ.P. In ~ i gspring v. Blackfeet Tribe (1978),
175 Mont. 258, 573 P.2d 655, we discussed the failure to file
the return within 10 days after service as mandated by Rule
5(f), M.R.civ.P. We stated that failure to file the return
within the time limits of that rule may be excused only upon
a showing of good cause. ~ i g spring, 175 Mont. at 263, 573
P.2d at 658. The facts in the present case demonstrate that
good cause has been shown.
The rules of civil procedure are to be construed in a
manner that secures the just, speedy and inexpensive
determination of lawsuits on their merits. Larango v. Lovely
(1981), 196 Mont. 43, 47, 637 P.2d 517, 519. Summary
dismissal of this lawsuit for failure to file the return is
not appropriate. We conclude that it is appropriate here to
excuse the failure to file the return.
The provision of Rule 41 (e), M.R.civ.P., is a departure
from the federal rule on the same subject in requiring the
return of service to be filed with the clerk of the court
within the three-year period. See Rule 41, F.R.Civ.P. since
our objective in adopting rules of procedure is uniformity of
procedural practice in Montana in state and federal practice
as far as possible, this provision of our rule will be
referred to the Commission on Rules of Procedure for
amendment in conformity with this opinion.
Reversed and remanded to the ~ i s t r i c tCourt for further
proceedings consistent with this opinion.
We Concur:
c h i e f Justice q
Justice R. C. McDonough dissents:
The language of the rule clearly and unequivocally
requires the dismissal of lawsuits when the return of service
fails to be "filed with the Clerk of Court within three years
after the commencement of said action." Such words should be
given their plain and ordinary meaning. Section 1-2-106,
MCA, Rierson v. State (1980), 188 Mont. 522, 614 P.2d 1020.
The purpose of the rule is to allow district judges by
examining the court file to dismiss actions in which proof of
service has not been entered without further red tape.
Dockets are cleared without delay.
The appellant has not stated or alleged any excuse or
reason to invoke the equity of a court for her failure to
file the return in the time frame required. In fact the
situation is just the opposite. The summons was issued on
the day of the filing of the action. The defendant, Treasure
County, was always available for over one thousand days for
service of process. Our Federal Constitution was debated and
approved by the Convention, and debated and ratified by the
States in less time when communication and transportation was
done by horse and buggy. Yet in this case no service was
made until the last day and it was incumbent on the appellant
to have proof of service filed. The majority opinion fosters
delay which is the opposite of just, speedy and inexpensive
determination of lawsuits.
I would affirm the District Court.
@% &
E Justice
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