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Schmitz v. Vasquez12/23/1998
he summons.
. Rule 1, M.R.Civ.P., provides that the rules of civil procedure should be construed to secure the just, speedy, and inexpensive determination of every action. The policy of the law is to favor trial on the merits. See Hoyt v. Eklund (1991), 249 Mont. 307, 311, 815 P.2d 1140, 1142. To bar Schmitz from the courthouse because of procedural irregularities from which Vasquez could show no prejudice would do nothing to further the goals and policies of the rules of civil procedure. We conclude that Schmitz complied with the substance and purpose of Rule 41(e), and, as in Yarborough, we decline to elevate form over substance. The amended summons adequately notified Vasquez that he was a defendant in a civil action and that he had twenty days in which to make an appearance. Furthermore, it was served within the time required by law. Therefore, the order of the District Court dismissing the complaint is reversed, and we remand for further proceedings.
TERRY N. TRIEWEILER
We Concur: J. A. TURNAGE W. WILLIAM LEAPHART JIM REGNIER WILLIAM E. HUNT, SR.
Justice James C. Nelson Dissents:
In my view our decision in Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d 1364, controls. The majority decision disregards that part of Rule 41(e), M.R.Civ.P., which requires dismissal of the action unless "summons issued within 1 year shall have been served and filed with the clerk of the court within three years after the commencement of action . . . ." Here, the summons issued within one year of the commencement of the action --the summons naming Dr. Sanz--was not served within 3 years on Dr. Vasquez. Rather, a different summons, one not naming Dr. Sanz and not authorized by the trial court as required by Rule 4D(7), M.R.Civ.P., and our decision in Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517, was served on Dr. Vasquez. Under the plain language of Rules 41(e) and 4D(7) and under our decisions in Larango and Haugen, Dr. Vasquez was clearly entitled to dismissal of Schmitzes' complaint against him.
Schmitzes also violated Rule 21, M.R.Civ.P., which provides that parties--here Dr. Sanz--may be dropped or added "by order of the court on motion of any party or of its own initiative at any stage of the action. . . ." Schmitzes did not move the court to drop Dr. Sanz as a party to their lawsuit, and they had no authority to do so. By failing to obtain leave of court to drop Dr. Sanz, Schmitzes' amended complaint and amended summons are both invalid. Furthermore, their reliance on Rule 15(a), M.R.Civ.P., in dropping Dr. Sanz from the original summons is misplaced. Pleadings are, in some cases, permitted to be amended without leave of court under this rule. A summons is not a pleading; it is process. See Rules 7(a) and 4C, M.R.Civ.P.
More importantly, there was absolutely nothing precluding Schmitzes from timely serving their original summons on Dr. Vasquez and filing it with the clerk of court even though Dr. Sanz was improperly named on the original summons. Rule 41(e) specifically provides that:
"When more than one defendant has been named in an action, the action may within the discretion of the trial court be further prosecuted against any defendant who has appeared within 3 years, or upon whom summons which has been issued within 1 year has been served and filed with the clerk within 3 years as herein required. "Schmitzes could have and should have timely served Dr. Vasquez with their original summons. Their failure to do so violated Rule 41(e) and is, therefore, fatal under Haugen."
The majority's reliance on Yarborough v. Glacier County (1997), 285 Mont. 494, 948 P.2d 1181, is misp
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