### No. 81-123 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

LOLA 

### MAE LARANGO, et a1

# ., Plaintiffsand Appellants,
-vsKENNETH LOVELY, Defendant and Respondent.

Appeal from: District Court of the Sixth Judicial District, In and for the County of Park, The Honorable Jack D. Shanstrom, Judge presiding.
Counsel of Record: For Appellant: Robert J. 

### Sewell,'Jr., Smith Law Firm, Helena, Montana For Respondent: Joseph T. Swindlehurst;Huppert & 

### Swindlehurst, Livingston,Montana

Submitted on Briefs: September 17, 1981 Decided: December 

### 9, 1981

Filed:

. .

# -$

# 1961

ClerkMr. justice Fred J. Weber delivered the Opinion of the Court.
Appellants brought s u i t i nthe Sixth Judicial District, Park County, Montana, alleging that the respondent negligently performed his duties asexecutor of the estateof which the appellants 

### are distributees. Upon motion of the respondent, the districtjudge quashed the summons and dismissed the suit. Wereverse. Lola Mae Swandal died testateon November 

### 8, 1974. Her 

### willwas admitted toprobate on November 26, 1974, and Kenneth Lovely, respondent herein, was named executor of the estate. Various portions of four sectionsof land were included inthe estate. Oilleases involving the land in these four sections had been executed prior to the death of the testatrix. On July 15, 1975, the property inone of the sectionswas sold by Lovely inhis capacity asexecutor. The DistrictCourt order confirming the sale stated that the property was sold "with the tenements, hereditaments and appurtenances thereto." The property inanother of the sections was sold inAugust, 1975. The court's order confirming that saleincluded a legal description of theproperty which contained thewords "Excepting therefrom One-half of the existing oil, gas, hydrothermal and mineral rights." These words were inked out, and the deletion was initialedby the judge. A statement of account for firstand final distribution


### was filedby Lovely on August 28, 1975. The schedule of assets attached to the statement of account included a recital of oil leases on and mineral rights reserved from the land i n a l lfour sections. The DistrictCourt issued 

### itsdecree of settlement of final account and distributionof estateon September 23, 1975. Each of the distributees received a fractional interestinthe oiland mineral rights to the land inallfour sections. Lovely was discharged as executor on March 2, 1976. On December 7, 1976, Lovely filed a petition to reopen the estateand amend the decree of settlementof final distribution. Lovely alleged that the decree inadvertently distributed the mineral rights to the two tractsof land which had been sold. Hearing on 

### this petition was had on July 19, 1977. The distributees of the Swandal estate resisted the petition, but on July 29, 1977, the District Court filedan amended decree of distribution. The amended decree reflected the conveyance of the mineral rights to the purchasers of the two tracts of land. The distributees 

### were sentnotice of entry of judgment and appealed from the judgment on September 1, 1977. The matter was finally submitted to thisCourt on September 21, 1978. On November 27, 1978, inMatter of Estate of Swandal (1978), Mont.



## , 587 P.2d 368, 35 St.Rep. 1716, thisCourt reversed the amendatory action of the District Court. We held that the mineral rights attendant to the two tracts conveyed by the executor were not part of the estate and not susceptible to distribution to anyone. The case was remanded to the ~istrict Court for amendment of the decreeby an order 

## --- nunc pro tunc to except themineral rightspreviously conveyed. 

### The distributees had retained attorney McKinley Anderson torepresent them in the proceedings outlined above. ~uring the pendency of the appeal inMatter 

# -- of the Estate 

## - of Swandal, attorneyAnderson prepared a civil complaint inbehalf of the distributees. The plaintiffs were Mabel Louise Easton, Dorothy EllenLarango, Lola Mae Larango, John Emery Swandal(deceased), Dorothy Hunt (representingminor heirs Shari Swandal and John Swandal), and Susan Denise Swandal. Gordon Francis Swandal, although omitted from the caption of the complaint, was included inthe body of the complaint as an heir of Lola Mae Swandal. Kenneth Lovely was sued aspersonal representative of Lola Mae Swandal (deceased). The compl-aint alleged thatLovely had been instructed that no oilor mineral rights 

### were tobe conveyed when property of the estatewas sold, but, despite this instruction, Lovely negligently allowed the conveyance of oiland mineral interests held by the estate. The complaint was filed on May 8, 1978, and a summons issued that same day to the plaintiffs' attorney. That attorney, McKinley Anderson, was replaced by the plaintiffs' present counsel, Robert Sewell, inOctober, 1978. On May 17, 1979, Sewell obtained service of the summons which had been issued on May 8, 1978. Before Sewell obtained serviceof this summons, he altered 

### it inseveral respects. Sewell's name 

### was substituted for that of the former attorney, Anderson; John Emery Swandal (deceased) was deleted as a plaintiff; Dorothy E. Hunt, guardian of Shari L. Swandal and John P. Swandal, minors, was substituted for Dorothy Hunt, representing minor heirs Shari Swandal and John Swandal; Gordon Swandal was added as a plaintiff. These changes 

### were made without leave of court. On May 18, 1979, an amended complaint 

### was filed. The amended complaint showed the same changes inplaintiffs and attorneys as the "amended" summons. The amended complaint added allegations thatLovely had failed to account for a grain crop growing on one of the tractswhich had been sold and had paid personal representativefees and attorney fees inexcess of the amount allowed by statute

# . A1 though the amended complaint named Kenneth Lovely, personally, as defendant, this change was not made
on the altered summons. The summons still listed the defendant
asKenneth Lovely, asthe personal representative of Lola Mae Swandal (deceased). On June 6, 1979, the defendant moved toquash the
summons because 

### ithad been materially altered since the date of issuance. Hearing on the motion was had on June 29, 1979, but the District Court did not issue 

### itsorder quashing the summons as issued and altereduntil December 11, 1979. Attorney Sewell has his office inLewis and Clark County, and a copy of the order quashing summons was not deposited inthe mail to be delivered to him until February 29, 1980. The copy was delivered to Sewell on March 3, 1980. Back on December 11, 1979, Sewell had filed a motion to amend the
summons. On March 6, 1980, Sewell mailed a motion toreconsider the order quashing summons to the clerk of court; this motion was filedby the clerk on March 20, 1980. On June 23, 1980, an amended complaintwas served upon Lovely, together with a new summons on that complaint. Lovely responded on July 7, 1980, with a motion to dismiss the complaint on the ground that the summons was not issued within one year of May 8, 1978, the date upon which the original complaint was filed. On July 

### 15, Sewell again moved the court toreconsider itsorder quashing summons or to allow amendment. July 15was also the date for the hearing
on Lovely's motion todismiss. On January 27, 1981, the DistrictCourt issued 

### its order granting Lovely's motion to dismiss. The plaintiffs appealed. Appellants have raised three issues inthis appeal.However, afterreview of allthree issues, we find that the
case can be resolved by addressing the centralquestion: Did the DistrictCourt abuse 

### its discretionby refusing to allow amendment of the summons? The respondent 

### iscorrect inasserting that the power to issue a summons 

### lies exclusively with the clerk of court. Rule 4C(1), M.R.Civ.P.; Kramer v. Scientific Control Corp. (D.C. Pa. 1973), 365 F.Supp. 780; 2 Moore's Federal Practice 114.04 (2d ed. 1981). An attorney has no power inthe matter. The attorney can only request that the summons be issued to him or her, Rule 4C(1), M.R.Civ.P., ormove the court to have the summons amended. Rule 4D(7),M.R.Civ.P. The attorney inthismatter was without authority to alter the
summons without leave of court. Nevertheless, once leave
was requested, the DistrictCourt should have allowed amendment. The Montana Rules of Civil Procedure are to be construed to secure the just, speedy and inexpensive determination of cases, Rule 1,M.R.Civ.P., and to facilitate the decision of
cases on their

### merits. Rambur v. Diehl Lumber Company (1964), 144Mont. 84, 394 P.2d 745. This Court has stated that

# ".

. . it

### is tobe considered a serious matter when a partymoves to have a case disposed of on grounds other than themerits." Rambur, 144Mont. at90, 394 P.2d at749. When the DistrictCourt quashed theMay 

### 8, 1978 summons on the ground that 

### ithad been altered without leave of court, failed torule upon themotion to reconsider 

### its quashing of the summons, and failed to ruleupon the motion to allow amendment of the summons, Rule 41

### (e)

## ,Ir4.R.Civ.P. 

### was brought intoplay. That ruleprohibits the further prosecution of
an action if a summons has not been issued within one year of commencement of the action. Lovely invoked Rule 41(e) in

### hismotion todismiss. The passage of time precluded the effective issuance of a new summons, and the casewas dismissed. So, after four years of litigation and two reviews by thisCourt, the

### meritsof this controversy are yet tobe considered. The District

### Court has the power 

### "[a]t 

### any time, in

### its discretion, and upon such notice and terms as it deems just,



# . . . [to] allow any process orproof of service thereof to be amended unless it clearly appears thatmaterial prejudice would result to the substantial rights of the party against whom the process issued." Rule 4D(7),M.R.Civ.P. The record lacks any indication thatmaterial prejudice to the substantial rights of Kenneth Lovely would have resulted from allowing a Rule 4D(7) amendment of the summons. One of the functions of a summons is to give notice. Amendment of theMay 8, 1978, summons toreflect theminor changes contained inthe amended complaint of May 18, 1979, would have given Lovely a somewhat more accurate picture of the action brought againsthim. Amendment would have aided Lovely; it

### would not have prejudiced him. The DistrictCourt abused 

### its discretionby not allowing amendment. The order of dismissal isreversed. The cause 

### isremanded for amendment of the
summons and amendment of proof of service. Issuance and service of the summons shallrelate back to the original dates of issuance and service, to insure that this case 

### is not dismissed for failure tocomply with the 

### timerequirements of Rule 41(e), 

### M.R.Civ.P. Reversed and remanded.

### We Concur:

ChAef Justice 

## \