### No. 12454 INTHE SUPREME COURT OF THE STATEOF MONTANA 1973

STATE ex re1Re

### W. McGHEE, He

### L. McGHEE et al., Petitioners,

THE DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT et al.

## , Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Petitioners: 

### Lucas,Jardine and Monaghan,Miles City,Montana James 

### P. Lucas argued,Miles City,Montana For Respondents: Gene Huntley argued,Baker, Montana

Submitted: March 

### 5, 1973

t

### Mr. Chief JusticeJames T, Harrison delivered the Opinion of the Court,

This isan originalproceeding commenced by R. W. McGhee, H.L. McGhee, and McGhee and McGhee, a partnership, hereinafter referred to as petitioners. Petitioners request this Court to take supervisory control of the district court of Fallon County and vacate an order of that court denying summary judgment in favor of allthe petitioners. The petition alleges the district court erred as a matter of law: "(1)n not concluding 9: J;

# * that the statute of limitations was 

### a valid defense for allnamed Defendants, and that it further erred inamending 

### its PARTIAL SUMNARY JUDGMENT tolimitthe relief to the Defendant H.L. McGhee, 11 The petition isbasedupon these facts: R. 

### W. McGhee and H.L. 14cGhee are the solepartners inMcGhee and McGhee. The purpose of the partnership 

### is to conduct a ranching operation south of Baker, Montana, in Fallon County. On December 20, 1968, while employed by the partnership inthe ranching operation, Alva B.McGhee, father of 

### ROW.McGhee, 

### was injured and died the following day. Sometime after his death, Ellen Dockter was appointed administratrix of decedent's estate. She commenced suit in the district court of Fallon County against petitioners individually and as members of the partnership, alleging they had failed to provide a safeplace towork and sought damages for the death of Alva McGhee, Complaint was filed on January 

### 4, 1972. Service

was had on H.L, McGhee that same day and on 

### R.W. McGhee on May 

### 30, 1972, inDuchesne County, Utah. Petitioners firstmoved to dismiss the complaint, setting up the statute of limitations as a complete bar to the suit. This motion was overruled. The respondent court then on its own motion, held an evidentiaryhearing on the question of the applicability of the statute of limitations. It was determined atthe hearingthat H. L. McGhee was present inMontana during the running of the statute of limitations and therefore the suitwas dismissed against him because he had not been served within the three year limitation period, R. 

### W, McGhee was found tohave resided in the state until May 

### 1971, atwhich time he became a resident of Utah. The district court held that suit could be maintained against him because the statute of limitations had been tolled by his a,bsence from Montana. The district court further ordered that the claim against the partnership was barred by the statute; but later amended that order to allow suit against the partnership, The sole issuehere 

### iswhether suit against 

### ReW. McGhee and the partnership was barred by the statute of limitations. Both parties agree the correct statutetoapply 

### is section 93- 2605(21, R.C.Me 1947, which provides for a three year period in which tobring: "An action torecover damages for the death of one caused by the wrongful act or neglect of another." Petitioners assert suitwas not filed until fourteen days after the time period for filing such suithad expired. Respondent court agrees with this position but asserts the statutewas tolledby the absence of R. W. McGhee from the state after

### May 

### 1971. As authority for 

### its argument respondent cites section 93-2702, R.C.M. 1947, which reads:

ItIf, when the cause of action accrues against a person, he 

### is out of the state, the action may be commenced within the term herein limited, after hisreturn to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence 

### isnot part of the time limited for the commencement of the action.It The purpose of section 93-2702, R..C.PI. 1947, is toprevent

a defendant from defeating a plaintiff's claim for relief by leaving the state orby establishingresidence inanother state, But, there 

### is an exception tothis rule, In caseswhere the plaintiff may effect serviceof process by some method, even though the defendant may be a nonresident or absent from the state, thestatutecontinues torun during the absence or nonresidency. The Supreme Court of Oklahoma inWalker v. L.E, Meyers Const. Co., 175 Okl. 548, 53 P.2d 547, 548, established this test to be applied in such cases: "The test as towhether the statute 

### is tolled or not seems tobe whether it 

### ispossible at alltimes to obtain service of the process upon a foreign corporation, upon which a personal judgment could be rendered, even though the foreign corporation isabsent from the state

# * +: 

## *." While the language of the Oklahoma court 

### is in terms of out of statecorporations, it canbe appliedhere. Respondent court has determined the facts tobe: That 

### ReW. McGhee was present inthe state on the day the accident took place; that he continued toreside in the stateuntil May 1971, and after that datehe resided inUtah. Based on those facts, it was possible to obtain service on R. W. McGhee during the entire three years. For the period up toMay 1971, he could have been served under Rule 4D(2)(a), M.R,Civ,P. After May 1971, service could have been accomplished by what iscommonly referred

II to as the long arm statute", Rule 4D(3), M.R.Civ.P. As a matter of fact, servicewas made on R. W. McGhee inUtah by virtue of thisrule. The alleged tort was committed by R. W. McGhee while he resided inMontana and under Rule 4B(l), M,R,Civ.P., this subjects him to thejurisdiction of the Montana courts. By being subject to thejurisdiction of respondent court and capable of being served during the entire time, the statute of limitations was not tolled. This conclusion 

### is supported by this Court's decision in State ex rel. Johnson v. Dist. Court, 148 Mont. 22, 417 P.2d 109. While the facts in Johnson arenot the same, the effect of the decision there was to subject a doctor living in California to thejurisdiction of the Montana courts for a torthe committed while living inMontana. In that case, servicewas obtained by the "long arm statute", Rule 4D(3), MeR,Civ,P.The Oklahoma Supreme Court reached the same conclusion inconstruing a statute similar in intent to~ontana's section 93-2702, 

### R.C.M, 1947, in St. Louis and S.F.R.Co. v. Taliaferro, 67 Okl, 37, 168 P. 788. There itwas said: "The theory of the statute of limitations 

### is that it operates tobar allactions, except as against persons and corporations upon whom notice of the action cannot be served because of theirbeing out of the state. If such notice can be served during the whole of the prescribed period, and a personal judgment can be enforced in the mode provided by law, then such person or corporation isnot 'out of the state,

# ' ik ?C ik", This same conclusionwas reached by the United States District Court inKlein v. Lionel Corporation, 130 F.Supp, 725, 727, in deciding whether the Delaware statute of limitations had been tolled inan antitrust suit. The court held: 

### he vast majority of the cases hold that a statutoryprovision tolling the Statute of Limitations during the time defendant isnot a resident or 

### isabsent from a statehas a direct reference to the inability of the plaintiff to secure service of personal process on such defendant. Thus, most courts hold that such statutes regarding the tolling the Statute of Limitations do not have the effect of tolling the statute, if notwithstanding such absence, personal service of process can be had. In such case the Statute of Limitations continues to run during the defendant's absence.II Therefore, because R. 

### W, McGhee was subject topersonal service the the entire running of the statute of limitations, the statuteas tohim was not tolled. In this case, itwas not necessary to serve R, We McGhee personally to securejurisdiction over the partnership. The alleged tort took place while decedent was in the employ of the partnership of R. W. McGhee and H.L. McGhee. Under Montana law of partnership, they could be sued under the partnership name and they were, as the court found, This is provided in section 93-2827, R.C,M. 1947, which also provides that summons in such

an action may be served one one of the partners and such service shallbe binding on allpartners. See: Rule 4D(2)(e)

## ,M.R.Civ.P. Here, as determined by the respondent court, H.L. McGhee was presentinMontana during the entire three year period and could have been served asa member of the partnership. This isa proper case for this Court toexercise its power of supervisory control under Article VIII, Sec, 2, of the 1889Montana Constitution, and section 93-1106, R.C.M. 1947. Therefore a 

### writ of supervisory control 

### is ordered to issue directing respondent court toamend 

### its summary judgment inits Cause 

### Y, 4306, togrant summary defendants,

ssociate