No. 12454 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE ex re1 Re 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 Justice James T, Harrison delivered the Opinion of the 

Court, 

This is an original proceeding 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 all the 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 all named 

Defendants, and that it further erred in amending 

its PARTIAL SUMNARY JUDGMENT to limit the relief 

to the Defendant H.L. McGhee, 11 

The petition isbasedupon these facts: R. W. McGhee and 

H.L. 14cGhee are the sole partners in McGhee 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 in the 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 safe place to work 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, in Duchesne County, Utah. 

Petitioners first moved 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 evidentiary hearing on the question of the applicability 

of the statute of limitations. It was determined at the hearing 
that H. L. McGhee was present in Montana during the running of 

the statute of limitations and therefore the suit was dismissed 

against him because he had not been served within the three year 

limitation period, 

R. W, McGhee was found to have resided in the state until 

May 1971, at which 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 issue here is whether suit against Re W. McGhee 

and the partnership was barred by the statute of limitations. 

Both parties agree the correct statute to apply is section 93- 

2605 (21, R. C .Me 1947, which provides for a three year period in 

which to bring: 

"An action to recover damages for the death of one 

caused by the wrongful act or neglect of another." 

Petitioners assert suit was not filed until fourteen days after 

the time period for filing such suit had expired. Respondent 

court agrees with this position but asserts the statute was 

tolled by 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: 

It If, 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 

his return to the state, and if, after the cause 

of action accrues, he departs from the state, the 

time of his absence is not part of the time limited 

for the commencement of the action. It 

The purpose of section 93-2702, R..C.PI. 1947, is to prevent 

a defendant from defeating a plaintiff's claim for relief by 

leaving the state or by establishing residence in another state, 

But, there is an exception to this rule, In cases where the 

plaintiff may effect service of process by some method, even though 

the defendant may be a nonresident or absent from the state, the 
statute continues to run during the absence or nonresidency. 

The Supreme Court of Oklahoma in Walker 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 to whether the statute is tolled 

or not seems to be whether it is possible at 

all times to obtain service of the process upon 

a foreign corporation, upon which a personal 

judgment could be rendered, even though the foreign corporation is absent from the state * +: *." 

While the language of the Oklahoma court is in terms of out 

of state corporations, it can be applied here. 

Respondent court has determined the facts to be: That 

Re W. McGhee was present in the state on the day the accident 

took place; that he continued to reside in the state until May 

1971, and after that date he resided in Utah. Based on those 

facts, it was possible to obtain service on R. W. McGhee during 

the entire three years. For the period up to May 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 is commonly referred 

I I to as the long arm statute", Rule 4D(3), M.R.Civ.P. As a matter 

of fact, service was made on R. W. McGhee in Utah by virtue of 

this rule. 

The alleged tort was committed by R. W. McGhee while he 

resided in Montana and under Rule 4B(l), M,R,Civ.P., this subjects 

him to the jurisdiction of the Montana courts. By being subject 

to the jurisdiction 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 are not the same, the effect of the 

decision there was to subject a doctor living in California to 

the jurisdiction of the Montana courts for a tort he committed 

while living in Montana. In that case, service was obtained by 

the "long arm statute", Rule 4D(3), Me R,Civ, P. 
The Oklahoma Supreme Court reached the same conclusion 

in construing 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 it was said: 

"The theory of the statute of limitations is that 

it operates to bar all actions, except as against 

persons and corporations upon whom notice of the 

action cannot be served because of their being 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 is not 'out of 

the state, ' ik ?C ik", 

This same conclusion was reached by the United States 

District Court in Klein v. Lionel Corporation, 130 F.Supp, 725, 

727, in deciding whether the Delaware statute of limitations 

had been tolled in an antitrust suit. The court held: 

 he vast majority of the cases hold that a 

statutory provision tolling the Statute of 

Limitations during the time defendant is not 

a resident or is absent from a state has 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. I I 

Therefore, because R. W, McGhee was subject to personal 

service the the entire running of the statute of limitations, 

the statute as to him was not tolled. 

In this case, it was not necessary to serve R, We McGhee 

personally to secure jurisdiction 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 

shall be binding on all partners. See: Rule 4D(2) (e) , M. R. Civ. P. 

Here, as determined by the respondent court, H.L. McGhee was present 
in Montana during the entire three year period and could have been 

served as a member of the partnership. 

This is a proper case for this Court to exercise its 

power of supervisory control under Article VIII, Sec, 2, of 

the 1889 Montana Constitution, and section 93-1106, R.C.M. 1947. 

Therefore a writ of supervisory control is ordered to issue 

directing respondent court to amend its summary judgment in its 

Cause Y, 4306, to grant summary defendants, 

ssociate