Honerine Min. & Mill. Co. v. Tallerday Steel Pipe & Tank Co. , 30 Utah 449 ( 1906 )

STRAUP, J.

This is an appeal from an order made by the district court quashing a service of summons. The plaintiff claimed service on the defendant, a foreign corporation, by serving a person claimed to be its agent and.claimed to have property in bis possession belonging to it. The defendant appeared specially and moved to quash the service, on the ground that the person served was not its officer or agent, and had no property, belonging to it, in his possession, or under his control. Upon the hearing of the motion on affidavits and testimony, the court made an order quashing the service. This was the last proceeding had or action taken in the case in the court below. The case was not dismissed, but is still there pending.

At the outset, the defendant urges that the order is not a final judgment, within the meaning of the statute or the Constitution, and is therefore not appealable. The point is well taken. The Constitution (section. 9, art. 8.) and the statute (section 3300, Revised Statutes 1898) provide: “From all final judgments of the district court there shall be a right of appeal to the Supreme Court.” Section 3183, Revised Statutes 1898, provides: “A judgment is a final determination of the rights of the parties in an action or proceeding.” This order is not a final judgment. The Nebraska statute is broader than the Utah statute, for the former confers jurisdiction upon the Supreme Court to review, by proceeding in error, all judgments rendered or final orders made by the district court. It defines a final order to be “an order affecting a substantial right in action, when such order, in effect, determines an action and prevents a judgment,” etc. Thereunder it was held by the Nebraska courts that an order quashing a service of summons was not such a final order as could be reviewed by tbe Supreme Court on error until a final judgment was rendered. (Persinger v. Tinkel, 34 Neb. 5, 51 N. W. 299; Standard Distilling Co. v. Freyhan, 34 Neb. 434, 51 N. W. 976; Lewis v. Barker, 46 Neb. 662, 65 N. W. 778.) Under a statute like tbe Nebraska statute tbe Supreme Court of Washington held sucb an order appealable, but based its decision expressly upon tbe ground that tbe lower court quashed tbe service of summons because it “was of tbe opinion that upon tbe merits of tbe action tbe plaintiff could not prevail,” and stated that it was extremely doubtful if an appeal would lie from an order quashing tbe service, where tbe action of the court was based upon some imperfection in tbe summons, a departure from tbe form prescribed, or for insufficiency of service and tbe like. (Embree v. McLennan, 18 Wash. 651, 52 Pac. 241.)

. It will be observed that tbe statutes give tbe right of an appeal not only from a judgment rendered, but also from a final order, while tbe Utah statutes gives tbe right of an appeal only from a final judgment. Prom what has been said by this court in prior cases, where the question as to what is a final judgment within tbe meaning of tbe statute was considered, this order cannot be regarded as a final judgment. (North Point Irr. Co. v. Utah Canal Co., 14 Utah 155, 46 Pac. 824; Eastman v. Gurrey, 14 Utah 169, 46 Pac. 828; Watson v. Mayberry, 15 Utah 265, 49 Pac. 479; Laundry Co. v. Dole, 20 Utah 469, 58 Pac. 1109; Popp v. Min. Co., 22 Utah 460, 63 Pac. 185.) In this connection plaintiff urges that to constitute a final judgment it is not necessary that there be a final determination on tbe merits, if tbe case is otherwise put out of court, and that tbe order bad sucb effect. It is true that to constitute a final judgment it is not essential that there be a final determination of tbe rights of tbe parties with reference to tbe subject-matter of the litigation, but merely with reference to tbe particular suit. It is tbe termination of tbe particular action which marks tbe finality of tbe judgment. A decision which terminates the suit, or puts tbe case out of court without an adjudication on tbe merits, is, nevertheless, a final judgment. (1 Black on Judgments, section 21; Mutual Reserve, etc., Ass’n v. Smith, 169 Ill. 264, 48 N. E. 208, 61 Am. St. Rep. 172; Thomas v. Clark County Nat. Bk., 103 Ky. 335, 45 S. W. 73; Bolton v. Donavan, 9 N. D. 575, 84 N. W. 357; 6 Pl. & Pr., 997; Watson v. Mayberry, supra.) All that plaintiff claims with respect to what constitutes a final judgment may be and is conceded, but it does not necessarily follow that the order bad the effect to terminate the particular action and put the case out of court, when the case has not been dismissed but is still pending in the lower court, and where the plaintiff was, and even now is, entitled to an alias summons. It cannot be said that the case was terminated in the district court when it is still pending there. The plaintiff will not be permitted to place itself in a position where with one arm it may invoke the jurisdiction of this court, while it may with another invoke the jurisdiction of the lower court pertaining to the same subject-matter. While plaintiff is here seeking to have determined that it has the defendant in court upon the process served, it may, at the same time, also apply for and obtain an alias summons from the district court with which it may serve the defendant and bring it in. But the plaintiff here asserts that an alias summons is of no avail because plaintiff cannot make a better or' different service than was made, and that if it has not the defendant in court upon such service it is unable otherwise to bring in the defendant. That may or may not be true. If such were the situation, plaintiff well could have indicated such fact to the trial court, together with a desire to stand upon the record as made and a refusal to further proceed in the action whereupon, no doubt, the court would have entered an order dismissing the action. In other words, the mere granting of the motion to quash the service of summons did not authorize the court to end the suit and dismiss the action, but, by plaintiff’s indicating a desire to stand upon the record and a refusal to further proceed, the court would then be authorized to do so. Such a proceeding would not, as is claimed by plaintiff, amount to a voluntary dismissal on its part and bar its right to appeal from the judgment and have reviewed the ruling made quashing tbe service. Tbe dismissal, as to it, would be submitted to, if at all, because of the adverse ruling, and therefore would be involuntary. (6 Pl. & Pr., 828.) Such a judgment of dismissal would be final and appealable. (6 Pl. & Pr., 998.) What we have here said as to plaintiff’s procedure is not to be construed as a bolding that such is tbe proper or tbe exclusive remedy. All that we are called upon to decide, and do decide, is that tbe order before us is not a final judgment and is not appealable.

Tbe defendant’s motion to dismiss tbe appeal is granted, with costs.

McOARTY, J., concurs. BAR.TOH, 0. J., concurs in tbe result.