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                                                               No. 98-221



                     IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                            1998 MT 250A

                                                        ________________



                                                 WILLIAM R. MacPHEAT, )

                                                                        )

                                                    Plaintiff and Appellant, )

                                                                        )

                                                            v. ) O R D E R

                                                                        )

                                                   PEGGY LEE SCHAUF, )

                                                                        )

                                                 Defendant and Respondent. )

                                                         _______________



On October 20, 1998, the Opinion of this Court in the above-entitled cause was filed.
MacPheat v. Schauf, 1998 MT 250. On November 6, 1998, respondent filed her Petition
for Rehearing. On November 13, 1998, appellant filed an answer memorandum to

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respondent's petition.

After review of this Court's Opinion issued October 20, 1998, and having considered
respondent's petition for rehearing as well as the response,

IT IS ORDERED:

1. Paragraphs 17 through 19 of this Court's October 20, 1998 Opinion, MacPheat v.
Schauf, 1998 MT 250 (Slip Op. at pp. 7-8) are hereby withdrawn and replaced with the
following:

                                         *******************************

¶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


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(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.

                                         *******************************

2. In all other respects the petition for rehearing is DENIED. Let remittitur issue forthwith.

3. The Clerk is directed to mail true copies of this order to counsel of record for
respondent and to appellant MacPheat personally.

DATED this 30th day of December, 1998.



/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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