# State Ex Rel. Montgomery Ward & Co. v. District Court

> Montana Supreme Court · March 14, 1944 · 115 Mont. 521

URL: https://www.frixlaw.com/law-library/cases/3543243

## Case

- **Full name:** STATE Ex Rel. MONTGOMERY WARD & CO. INC., Relator, v. DISTRICT COURT Et Al., Respondents
- **Court:** Montana Supreme Court
- **Decided:** March 14, 1944
- **Citations:** 115 Mont. 521; 146 P.2d 1012; 1944 Mont. LEXIS 8
- **Precedential status:** Published
- **Opinion:** Dissent by Anderson
- **Judges:** Anderson, Johnson, Erickson, Morris, Adair
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3543243

## How later opinions describe it (automated extraction)

- explaining that where the Legislature amended the statute but left in place the word “returned,” it cannot be explained by new matter added years later, but rather must be interpreted as originally understood
- recognizing amended summons issued after original summons surrendered without a proof or return of service.
- concluding that original summons returned after partial or defective service is functus officio

## Opinion text

MR. JUSTICE ANDERSON:
I dissent. Section 9108, Revised Codes, seems clearly to authorize the issuance of an alias summons as was here done. It is provided therein that: “If the summons is returned without being served on any or all of the defendants, or part of the defendants, or if it has been lost, the clerk, upon demand of the plaintiff, or his attorney, accompanied by a statement in writing filed with the clerk that said summons has been lost, or has not been served upon any or all of the defendants, shall issue an alias summons in the same form as the original, * * *. ’ ’
There is nothing in the statute requiring that a legal return be made by the sheriff or other person having the summons for service. The return spoken of in the statute clearly has reference to the physical act of bringing the summons back to the clerk.
*529
The language is, “If the summons is returned without being served,” etc. The only showing required for the issuance of an alias is that there be a demand for it by “the plaintiff, or his attorney, accompanied by a statement in writing filed with the clerk that said summons * * * has not been served upon any or all of the defendants * *.” All this appears to have been done. I can see no basis for questioning the validity of the summons.
That the word “returned” refers to the physical act of-bringing the summons back to the clerk is indicated by its use in section 9110, Revised Codes, which provides how the summons may be served and how returned when service has been made. It says that: “When the summons is served by the sheriff, it must be
returned, with his certificate of service,
and of the service of any copy of the complaint, where such copy is served, to the office of the clerk from which it is issued. When it is served by any other person, it must be
returned
to the same place,
with an affidavit
of such person of its service, and of the service of the copy of the complaint, where such copy is served.’’ (Emphasis mine.)
We note that the act of returning is referred to separate and apart from the reference to the written statement of what has been done about the service. Section 9108, Revised Codes, makes provision for a new summons and specifies the conditions under which it shall be issued by the clerk. The provision is first that the summons be returned with no service made or without completed service. There must then be a demand of the plaintiff or his attorney for a new summons and this demand must be accompanied by a statement in writing filed with the clerk that the summons has not been served upon any or all of the defendants. It thereupon becomes the duty of the clerk to issue a new summons without any further showing by the plaintiff.
The legislature has spoken so plainly there can be no misunderstanding of the language. There is no need of construction. The meaning of the statute contended for by the relator we can have only by eliminating express provision and adding language which is not there. To follow the language of the statute does not get any wrong or harmful result. The liberality of the provision
*530
may at times prove of great service. The fact that no reason for wanting the alias need be given other than that service has not been made should not invalidate the provision.
While successive issuance of summons at frequent intervals may be had, the only ill effect therefrom would be the extra labor-entailed on the part of the plaintiff and a little extra work for the - clerk. We must assume that practitioners will not under-s.tandingly do a useless thing. We might as well, by the exercise of supervisory control, place restriction upon a plaintiff in the use of the right to file an amended complaint. As the statute reads there is nothing to prevent the recurrent filing of new complaints in the exact form of the original but marked “amended complaint. ’ ’
In my view, the summons should be sustained as valid process, and relator’s application should be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3543243. Public record. Not legal advice.