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Schmitz v. Vasquez12/23/1998
en served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have 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 filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years."
. Schmitz contends that the procedural irregularities present in this case should not result in a dismissal of her suit because Vasquez was not prejudiced by the manner in which he was served with process. In support of her contention, she cites our decision in Yarborough v. Glacier County (1997), 285 Mont. 494, 948 P.2d 1181, and our policy which favors the resolution of disputes on their merits.
. Vasquez contends that Schmitz failed to comply with Rule 41(e), M.R.Civ.P., because the original summons was not served on Vasquez within three years of the commencement of the action. He further contends that the amended summons was invalid because Schmitz did not obtain leave from the court to amend the summons, as required pursuant to Rule 4D(7), M.R.Civ.P., nor did she obtain leave from the court to remove Sanz, as required pursuant to Rule 21, M.R.Civ.P. Schmitz acknowledges that she did not literally comply with Rule 4D(7), but contends she had a right to amend her complaint pursuant to Rule 15(a), M.R.Civ.P.
. In Yarborough, the plaintiff lost the original summons prior to service. The clerk of court issued an identical summons more than one year after the complaint was filed and the defendant moved for dismissal based upon Rule 41(e). We held that by serving, within three years, an identical copy of an original summons which had been issued within one year of the commencement of the action, the plaintiff complied with the substance and purpose of Rule 41(e). We concluded that "to require more would exalt form over substance and do nothing to further the resolution of controversies on their merits." Yarborough, 285 Mont. at 497, 948 P.2d at 1183.
. Vasquez points out that the summons in Yarborough was a duplicate of the original, while in this case the summons was "amended." He argues that the improper removal of Sanz from the complaint and from the summons constituted a substantial alteration of the summons, which renders the facts in the present case more analogous to those of Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517.
. In Larango, the plaintiffs altered a summons which had previously been issued by the district court by changing the name of their counsel, as well as by both adding and removing plaintiffs. The defendant moved to quash the summons because it had been materially altered since the date of issuance. Plaintiffs then requested leave to amend the summons, but the district court did not rule upon the motion. We held that the power to issue a summons lies exclusively with the clerk of court, an attorney has no power in the matter, and cannot alter a summons without leave of court. We also held, however, that the district court should have permitted amendment once it was requested. See Larango, 196 Mont. at 47, 637 P.2d at 519.
. In this case, Schmitz did not alter a previously issued summons. She requested and received an amended summons from the clerk of the District Court. While it is true that she did not comply with Rule 4D(7)
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