Layton v. Trapp , 20 Mont. 453 ( 1898 )

Pemberton, C. J.

The District Court held that the proof of the service of the summons issued by the justice, and returned by N. L. Almon, the person appointed' by the justice to serve the same, was not sufficient to give the justice jurisdiction to render judgment by default against the relator in the suit of Joseph Fisher against him.

Section 1688, Code of Civil Procedure, is as follows : “A justice may, at the request of a party, and on being satisfied that it is expedient, specially depute any proper person of suitable age, and not interested in the action, to serve a summons with or without an order to arrest the defendant, or with or without a writ of attachment or an execution. The justice shall be liable on his official bond for all official acts of the person so deputed. Such deputation shall be in writing made on the process, and a note thereof made in the justice’s docket. ’ ’

Section 1510 of the same code provides that service of summons in justice’s court may be made “by any male resident, over the age of twenty-one years, not a party to the suit, within the county where the action is brought, and must be served and returned as provided in Title 5, Part 2 of this Code.”

Section 635, Title 5, Part 2, same code, provides that when summons is served by any other than the sheriff ‘ ‘it must be returned to the same place, with an affidavit of such person of its service.”

Counsel for appellant contends that sections 1510 and 635, supra, do not apply in this case; his contention being that a person appointed by a justice of the peace to serve a summons, under the authority of Section 1688, supra, need not make proof of such service by his affidavit, in order to give the justice jurisdiction.

This is a question of jurisdiction. If there was no legal service of summons on the relator in the suit before the justice, and no appearance by the relator, then it will not be disputed that the judgment by default rendered in the case was void.

The justice’s court is a court of inferior jurisdiction, and there are no legal presumptions in favor of its jurisdiction. Its jurisdiction must affirmatively appear upon the face of the record. Proper proof of the service of the summons by a person other than an officer is a condition precedent to the rendition of a judgment by default, and without such proof the court has no jurisdiction. (King v. Randlett, 33 Cal. 318; Jolley v. Foltz, 34 Cal. 321; Barney v. Vigoureaux, 75 Cal. 376, 17 Pac. 433.)

The appointment of a private person to serve a summons by a justice does not make such person a constable. He is all the time he is acting a private person, and, being such, the service of the summons should be proved by his affidavit. The service of process by an officer is proved by his official certificate. But the officer has given an official bond and taken an official oath; a private person is not obligated by either bond or oath.

In Coffee v. Gates, 28 Ark. 43, speaking of the service of summons by private persons, the court said: “This law is a departure from the former practice ■ acts, wherein it confers upon the sheriff authority to cause an unofficial citizen to execute process of the court, and it cannot be presumed that the legislature ever intended that the service of a summons should •be binding if the party who made such service was bound by-neither oath nor bond for the correctness of his return. (McMillan v. Reynolds, 11 Cal. 378; Fatheree v. Long, 5 How. (Miss.) 664; Eskridge v. Jones, 1 Smedes & M. 595; Ditch v. Edwards, 1 Scam. 127.) In Gadsby v. Stimer, 79 Mich. 260, 44 N. W. 606, a similar case to the one at bar, the court said: “No one can be allowed to fill the room of a public officer, except under the statutory conditions; and it is a general legal rule that exceptional authority must always be shown in some responsible way. There can be no absolute presumption that a process server appointed by a justice- is legally appointed, without some showing of the necessary facts. ’ ’

Passing the question.as to whether the appointment of the justice was sufficient, in its terms, to authorize a private person to serve a summons, we are clearly of the opinion that it was absolutely essential that service of the summons by such private person should have been proved by the affidavit of the person making the service, in order to give the justice jurisdiction to render judgment by default in the case.

And the authorities not only hold that the service should be proved by the affidavit of the person making it, but that the service is void, and confers no jurisdiction to render judgment by default in such cases, unless it appears by the affidavit that the party serving the summons was of the prescribed statutory age at the time of the service. (Doerfler v. Schmidt, 64 Cal. 265, 30 Pac. 816; Horton v. Gallardo, 88 Cal. 581, 26 Pac. 375.)

We think the District Court rightly held that there was no proof of service of summons in the case before the justice, and that the judgment by default rendered by him in the case was void for want of jurisdiction.

The judgment appealed from is affirmed.

Affirmed.

Pigott, J., concurs. Hunt, J., not sitting.