                                            No.98-221

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           1998 MT 250


WILLIAM R. MacPHEAT, Plaintiff and Appellant,
v.
PEGGY LEE SCHAUF,

Defendant and Respondent.



                              Submitted on Briefs September 10, 1998.

                                    Decided October 20, 1998.

                    As Amended on Denial of Rehearing December 30, 1998


Appeal from the District Court of Flathead County.

Eleventh Judicial District.

Honorable Ted O. Lympus, Judge.

For Appellant: William R. MacPheat, Pro se, Deer Lodge.

For Respondent: I. James Heckathorn; Crowley, Haughey,
Hanson, Toole & Dietrich, Kalispell.

JUSTICE LEAPHART delivered the Opinion of the Court.

¶ 1 William R. MacPheat (MacPheat) appeals from the decision of the Eleventh Judicial District,
Flathead County, dismissing his case pursuant to Rule 41(e), M.R.Civ.P.

¶ 2 We reverse.

¶ 3 In determining whether the District Court erred, we restate the issues as follows:

¶ 4 1. Whether Peggy Lee Schauf (Schauf) waived issuance of summons and service of process.

¶ 5 2. Whether a case must be dismissed under Rule 41(e), M.R.Civ.P., when a summons has
issued but is not served within one year of the commencement of the action.
                                        Standard of Review

¶ 6 In reviewing a district court's conclusions of law, we determine whether the district court's
interpretation of law is correct. Sinclair v. Big Bud Mfg. Co. (1993), 262 Mont. 363, 366, 865
P.2d 264, 266; Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

                                Factual and Procedural Background

¶ 7 MacPheat filed a complaint in District Court on April 8, 1996, alleging that Schauf had
slandered him. On April 26, 1996 MacPheat caused summons to be issued; the Sheriff of
Flathead County returned the summons on May 2, 1996, finding that Schauf could not be
located. On May 8, 1996 MacPheat caused a second summons to be issued. The Sheriff of Hill
County returned the summons on May 28, 1996, finding that Schauf could not be located.
MacPheat then attempted service by publication of summons. Schauf moved to quash service of
process. MacPheat demanded proof that Schauf's counsel, I. James Heckathorn, had authority to
represent her. In response, Schauf filed a statement with the District Court stating that Mr.
Heckathorn had authority to represent her. The District Court subsequently granted her motion to
quash service of process. Schauf then moved to dismiss MacPheat's case. MacPheat moved to
deny Schauf's motion for dismissal and to amend his summons. The District Court dismissed the
action with prejudice pursuant to Rule 41(e), M.R.Civ.P.

                                             Discussion

¶ 8 1. Whether Schauf waived issuance of summons and service of process.

¶ 9 MacPheat contends that in moving for sanctions, filing a statement authorizing her attorney
to act on her behalf, and moving to dismiss the case, Schauf made voluntary general appearances
in District Court that waived issuance of summons and service of process. He argues that her
actions were voluntary general appearances under Haggerty v. Sherburne Mercantile Co.
because they were detrimental to him or beneficial to her and because in none of her appearances
did Schauf contest only the jurisdiction of the District Court. Haggerty v. Sherburne Mercantile
Co. (1947), 120 Mont. 386, 186 P.2d 884. MacPheat argues further that under this Court's
decision in Spencer v. Ukra, a voluntary general appearance waives issuance or service of
summons. Spencer v. Ukra (1991), 246 Mont. 430, 804 P.2d 380. Schauf responds that she
properly raised the issue of lack of personal jurisdiction in her first appearance before the District
Court and that she therefore did not waive issuance of summons and service of process.

¶ 10 In Knoepke v. Southwestern Ry. Co., this Court considered whether a party who raises the
issue of lack of personal jurisdiction in an initial appearance thereby recognizes the general
power of the court. Knoepke v. Southwestern Ry. Co. (1980), 190 Mont. 238, 620 P.2d 1185. The
Court concluded that Rule 12, M.R.Civ.P., had eliminated the distinction between special and
general appearances. Knoepke, 190 Mont. at 243, 620 P.2d at 1187. The Knoepke Court then
held:
Following service of process a party can attack the court's personal jurisdiction simply by
raising the jurisdiction issue in an initial response to plaintiff's claim by motion before
answering the claim or in answer to the claim. If the party's initial response to the opponent's
claim raises a personal jurisdiction issue, then the party is not subject to the general power of
the court solely because of the response.

Knoepke, 190 Mont. at 243, 620 P.2d at 1187-88 (emphasis added).

¶ 11 We conclude that MacPheat has misconstrued the significance of the record and this Court's
decisions in Haggerty and Spencer. The record establishes that Schauf raised the defense of lack
of personal jurisdiction in her initial appearance. She expressly moved the District Court for "an
Order quashing service of process."

¶ 12 Moreover, MacPheat's reliance on Spencer and Haggerty is misplaced. While recognizing
the rule in Haggerty that "[t]he voluntary general appearance by the defendant is a waiver of the
issuance or service of the summons," the Spencer Court distinguished Haggerty, concluding that
Haggerty was decided before the adoption of the "Rules of Civil Procedure modeled on the
federal Rules." Spencer, 246 Mont. at 433, 804 P.2d at 382. MacPheat argues that Schauf waived
her defense of lack of personal jurisdiction, which she raised in her first appearance, because she
combined it with other defenses. Rule 12(b), M.R.Civ.P., however, provides that "[n]o defense or
objection is waived by being joined with one or more other defenses or objections in a
responsive pleading or motion." In Spencer the Court held that "[an] objection to lack of personal
jurisdiction must be made at the time of the initial appearance in the District Court." Spencer,
246 Mont. at 433, 804 P.2d at 382. As the record establishes, however, Schauf objected to lack
of personal jurisdiction in her first appearance. Our decisions in Spencer and Haggerty do not
support MacPheat's argument. We affirm the District Court's ruling that Schauf did not waive
issuance of summons and service of process.


¶ 13 2. Whether a case must be dismissed under Rule 41(e), M.R.Civ.P., when a summons has
issued but is not served within one year of the commencement of the action.

¶ 14 MacPheat argues that the District Court erred in dismissing his case pursuant to Rule 41(e),
M.R.Civ.P. He argues that his summons did not cease to exist legally because he could not
obtain service within one year of the commencement of the action. MacPheat further asserts that
the District Court erred in denying his motion to amend his summons pursuant to this Court's
decision in Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517. In Larango, the plaintiff
obtained service of a summons but altered it without leave of court before service was obtained.
The defendant moved to quash the summons because of plaintiff's alterations, and plaintiff then
moved to amend the summons. The district court granted defendant's motion to quash and
dismissed the case. The Court in Larango held that the district court abused its discretion in
refusing to allow amendment of the summons and remanded the case for amendment of the
summons and proof of service. Larango, 196 Mont. at 48, 637 P.2d at 520. The Court held that
"[i]ssuance and service of the summons shall relate back to the original dates of issuance and
service, to insure that [the] case is not dismissed for failure to comply with the time requirements
of Rule 41(e), M.R.Civ.P." Larango, 196 Mont. at 48, 637 P.2d at 520.

¶ 15 Schauf contends that the two summons that MacPheat caused to be issued and that the
Sheriffs of Hill and Flathead counties returned were functus officio. Schauf argues in essence that
because the two summons issued were returned without having been served, they were without
legal effect under Rule 41(e), M.R.Civ.P. Schauf further argues that the District Court correctly
denied MacPheat's motion to amend his summons because no summons then existed that could
be amended. Schauf attempts to distinguish this Court's decision in Larango on the ground that
in Larango there was a viable summons but that there is no summons in existence in the present
case.

¶ 16 In dismissing MacPheat's case under Rule 41(e), M.R.Civ.P., the District Court found that
Schauf "has never been served with summons and there is no viable summons in existence which
could be served upon her." The District Court concluded that compliance with Rule 41(e) was
"impossible." Rule 41(e) provides in pertinent part:

Failure to serve summons. No action heretofore or hereafter commenced shall be further
prosecuted as to any defendant who has not appeared in the action or been 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 . . . 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.

Rule 41(e), M.R.Civ.P. (emphasis added).

¶ 17 We conclude that the District Court erred in dismissing MacPheat's case. The parties do not
dispute and the record clearly establishes that MacPheat caused two summons to issue against
Schauf within one year of the commencement of the action. Thus, although MacPheat was
unable to obtain service of the summons within one year, he complied with the requirement of
Rule 41(e), M.R.Civ.P., that a summons be issued within one year of the commencement of an
action. Schauf has misunderstood the meaning of functus officio. Functus officio means "having
fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no
further force or authority," Black's Law Dictionary 673 (6th ed. 1990); it does not mean void ab
initio. The timely issuance of MacPheat's summons did not become void ab initio because they
were filed with returns indicating that service had not been obtained. Rule 41(e) does not require
that a plaintiff even attempt service within one year of the commencement of an action; thus,
MacPheat's attempt to obtain service is of no consequence under the one-year requirement of
Rule 41(e). We conclude that the District Court's dismissal of MacPheat's case is inconsistent
with the overall scheme and purposes of Rule 41(e), M.R.Civ.P., and that it is incorrect as a
matter of law.

¶ 18 We also conclude, however, that the District Court correctly denied MacPheat's motion to
amend his original summons. When MacPheat's original summons was filed together with a
return indicating that service had been attempted but not obtained, the summons became functus
officio not with regard to its issuance but with regard to its further service. As such, the summons
can no longer be amended. Thus, rather than seek amendment of such summons, MacPheat
should have requested an additional summons pursuant to Rule 4C(1), M.R.Civ.P. Compare
Montgomery Ward Co. v. District Court (1944), 115 Mont. 521, 527, 146 P.2d 1012, 1015
(concluding that original summons returned after partial or defective service is functus officio)
and Schmitz v. Vasquez, 1998 MT 314 (decided December 23, 1998) (recognizing amended
summons issued after original summons surrendered without a proof or return of service).

¶ 19 We hold that when a party has caused a summons to issue within one year of the
commencement of an action, he has complied with Rule 41(e). The fact that he or she is not
successful in serving the summons within one year of the commencement of the action is of no
consequence. A party may cause additional summons to issue pursuant to Rule 4C(1),
M.R.Civ.P., and have three years from the commencement of the action to obtain service.

¶ 20 Reversed.

JUSTICES TRIEWEILER, HUNT, NELSON and REGNIER concur.
