NO. 89-121 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

VIOLET LIVINGSTON, 

Plaintiff and Appellant, 

TREASURE COUNTY, a political 

subdivision of the State of 

Montana, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial gstr~qt , In and for the County of Yellowstone, --I 

The Honorable ~iane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John J. Cavan; Cavan, Smith, Grubbs & Cavan, ~illings, 

Montana 

For Respondent: 

Calvin J. Stacey; Keefer, Roybal, Hanson, Stacey & 

Walen, ~illings, Montana 

Lee Kerr, Treasure County Attorney, Hysham, Montana 

Filed: 

Submitted on Briefs: July 7, 1989 

Decided: November 6, 1989 

Clerk 
~ustice William E. Hunt, Sr., delivered the Opinion of the 

Court. 

plaintiff Violet ~ivingston appeals from a judgment of 

the District Court of the Thirteenth Judicial District, 

Yellowstone County, dismissing her complaint against 

defendant Treasure County. We reverse and remand. 

The sole issue raised on appeal is whether the District 

Court erred in dismissing the complaint because the return of 

service was not filed with the clerk of court within three 

years after the commencement of the action. 

On November 27, 1985, plaintiff filed a complaint 

against defendant, alleging personal injuries due to the 

negligence of defendant's employees. Summons was issued on 

the same day. 

Three years later, on November 27, 1988, plaintiff 

delivered the summons and complaint to the sheriff, who 

served defendant on that day. plaintiff filed the summons 

and return with the District Court on December 20, 1988. 

On December 14, 1988, defendant filed a motion to 

dismiss. The District Court granted the motion, concluding 

that under Rule 41 (e), M.R.civ.P., the action could not be 

prosecuted because the summons and return were not filed with 

the clerk of court within three years after commencement of 

the action. plaintiff appealed to this Court. 

At issue in this case is Rule 41(e), M.R.civ.P., which 

provides in pertinent part: 

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 4241 the court in which the same shall ha= 
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 return -- made and filed with the clerk -- of 

r 

the court within 3 years after the commencement of 

sald action, or unless appearance has been by tG 

defendant or defendants therein within said 3 

years. (Emphasis added. ) 

The literal language of the rule requires an action's 

dismissal if the plaintiff fails to serve the defendant and 

file the return within three years of the commencement of the 

lawsuit. We do not believe, however, that such a harsh 

result is warranted in a case such as this, where plaintiff 

has served defendant on the last permissible day but has 

failed to file the return with the clerk of court until 

approximately one month after three years have elapsed. 

The purpose of Rule 41(e), M.R.civ.P., is to ensure that 

actions are timely prosecuted. See State ex rel. Equity 

Supply Co. v. ~istrict Court (1972), 159 Mont. 34, 494 P.2d 

911. Indispensable to the timely prosecution of an action is 

the service of the summons and complaint. Service of the 

summons is the means by which the district court acquires 

personal jurisdiction over the defendant. linto on v. ~iller 

(1951), 124 Mont. 463, 478, 226 P.2d 487, 495; Haggerty v. 

Sherburne Mercantile Co. (1947), 120 Mont. 386, 392, 186 P.2d 

884, 889. Service is also essential to due process as it 

notifies the defendant of the pendency of an action against 

him thereby giving him the opportunity to defend himself or 

his property. Clinton, 124 Mont. at 478, 226 P.2d at 495; 

Haggerty, 120 Mont. at 396-97, 186 P.2d at 891. 

~iling the return, on the other hand, is simply a 

ministerial act. The return itself is merely evidence of 

service of the summons and complaint. linto on, 124 Mont. at 
479, 226 P.2d at 495. It is filed with the court only to 

document on the record the fact that service has been 

completed. 

In this case, the plaintiff's failure to file the return 

neither hindered nor delayed prosecution of the action. Nor 

did it affect the validity of service. 

We note that other rules governing proof of service 

provide that "[flailure to make proof of service does not 

affect the validity of the service. " Rules 4D (8) (e) and 

5(f), M.R.civ.P. In ~ig spring v. Blackfeet Tribe (1978), 

175 Mont. 258, 573 P.2d 655, we discussed the failure to file 

the return within 10 days after service as mandated by Rule 

5(f), M.R.civ.P. We stated that failure to file the return 

within the time limits of that rule may be excused only upon 

a showing of good cause. ~ig spring, 175 Mont. at 263, 573 

P.2d at 658. The facts in the present case demonstrate that 

good cause has been shown. 

The rules of civil procedure are to be construed in a 

manner that secures the just, speedy and inexpensive 

determination of lawsuits on their merits. Larango v. Lovely 

(1981), 196 Mont. 43, 47, 637 P.2d 517, 519. Summary 

dismissal of this lawsuit for failure to file the return is 

not appropriate. We conclude that it is appropriate here to 

excuse the failure to file the return. 

The provision of Rule 41 (e) , M.R.civ.P., is a departure 

from the federal rule on the same subject in requiring the 

return of service to be filed with the clerk of the court 

within the three-year period. See Rule 41, F.R.Civ.P. since 

our objective in adopting rules of procedure is uniformity of 

procedural practice in Montana in state and federal practice 

as far as possible, this provision of our rule will be 

referred to the Commission on Rules of Procedure for 

amendment in conformity with this opinion. 
Reversed and remanded to the ~istrict Court for further 

proceedings consistent with this opinion. 

We Concur: 

chief Justice q 
Justice R. C. McDonough dissents: 

The language of the rule clearly and unequivocally 

requires the dismissal of lawsuits when the return of service 

fails to be "filed with the Clerk of Court within three years 

after the commencement of said action." Such words should be 

given their plain and ordinary meaning. Section 1-2-106, 

MCA, Rierson v. State (1980), 188 Mont. 522, 614 P.2d 1020. 

The purpose of the rule is to allow district judges by 

examining the court file to dismiss actions in which proof of 

service has not been entered without further red tape. 

Dockets are cleared without delay. 

The appellant has not stated or alleged any excuse or 

reason to invoke the equity of a court for her failure to 

file the return in the time frame required. In fact the 

situation is just the opposite. The summons was issued on 

the day of the filing of the action. The defendant, Treasure 

County, was always available for over one thousand days for 

service of process. Our Federal Constitution was debated and 

approved by the Convention, and debated and ratified by the 

States in less time when communication and transportation was 

done by horse and buggy. Yet in this case no service was 

made until the last day and it was incumbent on the appellant 

to have proof of service filed. The majority opinion fosters 

delay which is the opposite of just, speedy and inexpensive 

determination of lawsuits. 

I would affirm the District Court. 

@E%R& Justice