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Schmitz v. Vasquez12/23/1998
because the District Court did not give her permission to have an amended summons issued, the issuance of the amended summons did not prejudice Vasquez. Our review of both the original and "amended" summons reveals that they are substantively identical. " e disregard terminology in the title of the summons" and look to its substance. See Yarborough, 285 Mont. at 499, 948 P.2d at 1184. The purpose of the summons is to provide a defendant with notice that he has been made a party to an action and that he has twenty days to appear before the court.
. Vasquez can show no prejudice resulting from the variation between the manner in which he was served with process and the manner in which he would have been served by the original summons, or the manner in which he would have been served if Schmitz had complied with Rule 4D(7). In all three scenarios, Vasquez received notice, within three years of the commencement of the action, that he was a party to this action. Furthermore, a summons has existed, identifying him as a party, since the commencement of the action.
. Rather than being prejudiced by the amended summons, the amendment actually assisted Vasquez in ascertaining the true nature of the action against him. Schmitz could not proceed against Sanz because she did not make a claim against him before the Medical Legal Panel and, therefore, the District Court had no jurisdiction over him. The amended summons more accurately reflected this fact. In Larango, we concluded that where amendment would have aided a party, it was an abuse of discretion for the district court not to allow the amendment. See Larango, 196 Mont. at 48, 637 P.2d at 520.
. Vasquez also contends that Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d 1364, and Association of Unit Owners v. Big Sky (1986), 224 Mont. 142, 729 P.2d 469, control the outcome of this case.
. The holding in Haugen is inapplicable to the present facts. In Haugen, amended summons were issued by the clerk of court, at the plaintiffs' request, just prior to the expiration of the three-year period. The plaintiffs failed to serve one of the summons, and failed to file proof of service for any of the summons prior to the expiration of that period. We held that failure to file the proofs of service within three years of the commencement of the action violated Rule 41(e). See Haugen, 279 Mont. at 9, 926 P.2d at 1369. We did not, however, hold that the amended summons were invalid.
. In this case, Schmitz was also issued an amended summons by the clerk of the District Court just prior to the expiration of the three-year period. However, unlike the plaintiffs in Haugen, Schmitz was able to serve and file proof of service of the amended summons within the three-year period, in accordance with Rule 41(e).
. In Association of Unit Owners, the plaintiffs obtained "duplicate summons" more than one year after the commencement of the action. We held that the purported "duplicates" failed to meet the requirements of Rule 41(e) because they were changed in substance from the original summons which did not give adequate notice to the defendants who were not originally named. See Association of Unit Owners, 224 Mont. at 148, 720 P.2d at 472.
. The facts of the present case are distinguishable. Here, there was no change in the summons which was relevant to Vasquez. He received the same notice from the amended summons as he would have received from the original summons. Both provided him with notice that a complaint had been filed against him and that he had twenty days to respond. As we stated earlier, Vasquez can show no prejudice resulting from the removal of another party's name from t
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