NO. 89-121
IN THE SUPREME COURT OF THE STATEOF MONTANA
1989

VIOLET LIVINGSTON, Plaintiff andAppellant,

TREASURE COUNTY, a political subdivisionof the State of Montana, Defendant and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicialgstr~qt 

### , In and for the County ofYellowstone, --I The Honorable ~iane G. Barz, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
John J. Cavan; Cavan, Smith, Grubbs & Cavan, ~illings, Montana
For Respondent: CalvinJ. Stacey; Keefer, Roybal, Hanson, Stacey & Walen, ~illings, Montana Lee Kerr,Treasure CountyAttorney, 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 ~ivingstonappeals 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 complaintbecause the return of service was not filed with the clerk of court within three years after the commencementof 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 sameday. 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 summonsand returnwere not filedwith the clerk of court within three years after commencement of the action. plaintiff appealed to thisCourt. At issue in this case is Rule 41(e), M.R.civ.P., which provides in pertinentpart: 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

## 4241the court inwhich the same shallha=been commenced,on its ownmotion, or on themotion 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 returnmade and filed with the clerk of -- 

### -- the courtwithin 3 years after the commencement

## of

r sald action, or unless appearance has been by tG defendant or defendants therein within said 3 years. (Emphasisadded.) 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 commencementof 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. Thepurpose 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. Indispensableto 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),120Mont. 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, 120Mont. at 396-97, 186 P.2d at 891. ~ilingthe 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, 124Mont. at479, 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, theplaintiff'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), 175Mont. 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 rulemay 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 determinationof lawsuitson their merits. Larangov. 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 appropriatehere 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 federalpractice

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:

chiefJustice

# q

### JusticeR. C. McDonoughdissents:

The language of the rule clearly and unequivocally requires the dismissal of lawsuits when the returnof service fails to be "filedwith the Clerk of Court within threeyears after the commencementof 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 whichproof of service has not been entered without further red tape. Docketsare cleared withoutdelay. 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. Thedefendant, Treasure County, was always available for over one thousand days for serviceofprocess. Our Federal Constitutionwas debated and approved by the Convention, and debated and ratified by the States in less time when communicationand transportation was done by horse and buggy. Yet in this case no service was made until the last day and itwas incumbenton the appellant to haveproof of service filed. The majority opinion fosters delay which is the opposite of just, speedy and inexpensive determinationof lawsuits. Iwould affirm the DistrictCourt. 

# @E%R& Justice