No. 81-123 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

LOLA MAE LARANGO, et a1 . , 

Plaintiffs and 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 

Clerk 
Mr. justice Fred J. Weber delivered the Opinion of the 

Court. 

Appellants brought s u i t i n the Sixth Judicial District, 

Park County, Montana, alleging that the respondent negligently 

performed his duties as executor of the estate of which the 

appellants are distributees. Upon motion of the respondent, 

the district judge quashed the summons and dismissed the 

suit. We reverse. 

Lola Mae Swandal died testate on November 8, 1974. Her 

will was admitted to probate on November 26, 1974, and 

Kenneth Lovely, respondent herein, was named executor of the 

estate. Various portions of four sections of land were 

included in the estate. Oil leases involving the land in 

these four sections had been executed prior to the death of 

the testatrix. On July 15, 1975, the property in one of the 

sections was sold by Lovely in his capacity as executor. The 

District Court order confirming the sale stated that the 

property was sold "with the tenements, hereditaments and 

appurtenances thereto." The property in another of the 

sections was sold in August, 1975. The court's order confirming 

that sale included a legal description of the property which 

contained the words "Excepting therefrom One-half of the 

existing oil, gas, hydrothermal and mineral rights." These 

words were inked out, and the deletion was initialed by the 

judge. A statement of account for first and final distribution 

was filed by 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 l four sections. The District Court issued 

its decree of settlement of final account and distribution 
of estate on September 23, 1975. Each of the distributees 

received a fractional interest in the oil and mineral rights 

to the land in all four sections. Lovely was discharged as 

executor on March 2, 1976. 

On December 7, 1976, Lovely filed a petition to reopen 

the estate and amend the decree of settlement of final 

distribution. Lovely alleged that the decree inadvertently 

distributed the mineral rights to the two tracts of 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 filed an 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 

sent notice of entry of judgment and appealed from the 

judgment on September 1, 1977. The matter was finally 

submitted to this Court on September 21, 1978. On November 

27, 1978, in Matter of Estate of Swandal (1978), Mont. 

, 587 P.2d 368, 35 St.Rep. 1716, this Court 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 decree by an order --- nunc pro tunc 

to except the mineral rights previously conveyed. 

The distributees had retained attorney McKinley Anderson 

to represent them in the proceedings outlined above. ~uring 

the pendency of the appeal in Matter -- of the Estate - of Swandal, 

attorney Anderson prepared a civil complaint in behalf of 

the distributees. The plaintiffs were Mabel Louise Easton, 

Dorothy Ellen Larango, Lola Mae Larango, John Emery Swandal 
(deceased), Dorothy Hunt (representing minor heirs Shari 

Swandal and John Swandal), and Susan Denise Swandal. Gordon 

Francis Swandal, although omitted from the caption of the 

complaint, was included in the body of the complaint as an 

heir of Lola Mae Swandal. Kenneth Lovely was sued as personal 

representative of Lola Mae Swandal (deceased). The compl-aint 

alleged that Lovely had been instructed that no oil or 

mineral rights were to be conveyed when property of the 

estate was sold, but, despite this instruction, Lovely 

negligently allowed the conveyance of oil and 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, 

in October, 1978. 

On May 17, 1979, Sewell obtained service of the summons 

which had been issued on May 8, 1978. Before Sewell obtained 

service of this summons, he altered it in several 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 in plaintiffs and attorneys as the "amended" summons. 

The amended complaint added allegations that Lovely had 

failed to account for a grain crop growing on one of the 

tracts which had been sold and had paid personal representative 
fees and attorney fees in excess 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 

as Kenneth Lovely, as the personal representative of Lola 

Mae Swandal (deceased). 

On June 6, 1979, the defendant moved to quash the 

summons because it had 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 its order quashing 

the summons as issued and altered until December 11, 1979. 

Attorney Sewell has his office in Lewis and Clark County, 

and a copy of the order quashing summons was not deposited 

in the 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 to reconsider 

the order quashing summons to the clerk of court; this 

motion was filed by the clerk on March 20, 1980. On June 

23, 1980, an amended complaint was 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 to reconsider its order quashing summons or to 

allow amendment. July 15 was also the date for the hearing 

on Lovely's motion to dismiss. On January 27, 1981, the 

District Court issued its order granting Lovely's motion to 

dismiss. The plaintiffs appealed. 

Appellants have raised three issues in this appeal. 
However, after review of all three issues, we find that the 

case can be resolved by addressing the central question: Did 

the District Court abuse its discretion by refusing to 

allow amendment of the summons? 

The respondent is correct in asserting 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 in the matter. 

The attorney can only request that the summons be issued to 

him or her, Rule 4C(1), M.R.Civ.P., or move the court to 

have the summons amended. Rule 4D(7), M.R.Civ.P. The 

attorney in this matter was without authority to alter the 

summons without leave of court. Nevertheless, once leave 

was requested, the District Court 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), 144 Mont. 84, 394 P.2d 745. This Court has stated 

that ". . . it is to be considered a serious matter when a 

party moves to have a case disposed of on grounds other than 

the merits." Rambur, 144 Mont. at 90, 394 P.2d at 749. When 

the District Court quashed the May 8, 1978 summons on the 

ground that it had been altered without leave of court, 

failed to rule upon the motion to reconsider its quashing of 

the summons, and failed to rule upon the motion to allow 

amendment of the summons, Rule 41 (e) , Ir4.R.Civ.P. was brought 

into play. That rule prohibits 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 
his motion to dismiss. The passage of time precluded the 

effective issuance of a new summons, and the case was dismissed. So, after four years of litigation and two reviews 

by this Court, the merits of this controversy are yet to be 

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 or proof of service thereof to 

be amended unless it clearly appears that material 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 that material 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 

the May 8, 1978, summons to reflect the minor changes contained 

in the amended complaint of May 18, 1979, would have given 

Lovely a somewhat more accurate picture of the action brought 

against him. Amendment would have aided Lovely; it would 

not have prejudiced him. The District Court abused its 

discretion by not allowing amendment. The order of dismissal 

is reversed. The cause is remanded for amendment of the 

summons and amendment of proof of service. Issuance and 

service of the summons shall relate back to the original 

dates of issuance and service, to insure that this case is 

not dismissed for failure to comply with the time requirements 

of Rule 41(e), M.R.Civ.P. 

Reversed and remanded. 
We Concur: 

ChAef Justice \