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Show WEDNESDAY, APRIL 19, 1972 THE DAILY RECORD PAGE THREE T In The Supreme Court Of The State Of Utah lish the summons without receiving compensation therefor. Surely Boddie does not intend to hold that there should be a special procedure for dissatisfied wives which would be denied to plaintiffs in other types of litigation wherein a defendant leaves this State before service can be had upon him. Shirley J. Lloyd and Della C. Cook, Plaintiffs, No. 12460 v. FILED Third Judicial District Court In And For Salt Lake County, State of Utah, Defendant, April 5, 1972 L. M. Cummings, Clerk ELLETT, Justice; '? . . The plaintiffs above named are the impecunious wives of men whose whereabouts are unknown. They petitioned this court for a writ of mandate in substance to compel the trial court to permit each plaintiff to obtain service on the missing spouse by mailing "Notice of the Action" to the last known address of each defendant. This we refused to do. the first place, "Notice of the Action" will not give jurisdiction over a defendant in any. type of case. A summons must be served upon a defendant personally if he be within the confines of the State of Utah and not in hiding, If he be without the State or so conceals himself yrithin the State that personal service cannot be had upon him, then jurisdiction is obtained by personal service outside of Utah or by publishing the summons in a newspaper having general circulation in the county wherein the action is pending If we should be compelled to allow these plaintiffs to evade our established law regarding service of summons in order that they might be successful in their desire for freedom from the matrimonial yoke, should not we also devise a procedure whereby they can have an investigator to secure evidence to insure the judgment which each so eagerly desires? The matter before this court was and is a' request lor a writ oi mandate to compel the Third Judicial District Court to perform an act. A writ of mandate will not lie to compel an office such as "Third Judicial District Court" to do an act; it acts directly on the person holding the It will not serve the purpose of certiorari, appeal, or writ of office. 4. Bullock County v. Ritzert, 102 S.E. 2d 40 (Ga. 1958); 52 Am. Jur. 2d Mandamuf $9. error. In the second place, even if a summons is mailed to a defendant at his last known address, no jurisdiction would be obtained, for there is no statute or rule 'of 'court providing for such procedure. The petition would require us to violate our own established law by directing the lower court to attempt to obtain jurisdiction in a manner unknown to our legal procedure. i In We cannot order the lower court to make rules of procedure, for it has no power to do so. The trial court properly refused to make an order that jurisdiction over the absent spouses could be obtained in a manner contrary to law. By denying that request, he acted on the matter; and ii these plaintiffs think he ' erred in doing so, they could have petitioned tor an inter lor utory appeal. Mandamus will not lie to compel an officer who has once acted to change his ruling. ' not think the Boddie case requires us to grant the writ of mandamus requested, and we, therefore, respectfully decline to do so. The petition is denied. We do The plaintiffs claim that they are denied due process of law by havto ing publish summons. They do not seem to care about due process of law insofar as their husbands are concerned. In cases such as these, the last known address is usually the present address of the wife. In cases of action by third parties against an absent husband, a summons sent to the wife's address would likely be relayed on to the absent spouse; but in cases of domestic suits, the mailing to the defendant at the plaintiff's address would likely give no notice whatsoever to the defendant. On the other hand, a summons published once a week for four successive weeks in a news- WE CONCUR: E. R. Callister, Jr. , Chief Justice paper having general circulation in the county wherein the plaintiff resides would likely be seen by the defendant or by some acquaintance or relative of the defendant whp would give notice of the pending matter to him. R. L. Tuck.ett, Justice Thus it is deemed in our procedure that publication better meets the requirements of due process of law than would merely mailing to the last J. Allan Crockett, Justice known address. process of law is said by Story to be: "Law in its regular course, of administration through courts of justice. Cooley says: "Due process of law in each particular case means such an exercise of the powers of the governlricnt as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as these maxims preBlack's scribe for the class of cases to which the one in question belongB. to Law Dictionary, 4th Edition, p. 590, in defining the terms, has this say: a to and those of rules mean then course according legal "They proceedings Henriod, Justice, does not participate herein. Due 52 Am. Rule 4(f), 2. 3 3. Cooley,- Const, Lam. , Warranty Deeds - 441. 204 Housing. Our law regarding the service ol summons on nonresidents has remained practically unchanged sime 1907, and thousands of cases have been determined under its provisions. For us to hoid that a procedure so well established is unconstitutional would cast doubt on the validity of prior judgments granted thereunder and would create havoc with titles to a great part of the land of this State. Aztec Builders. Security Aitle 221 Douglas R. Bischoff to Norma N. Ratliff. etux 108 246 Kenneth L. Thayn etux dbe Kenneth E. Thayne Hom- to es Const, to Reid C. i William Howard Allen etux to Ethel P. Stirling. 114 same as 244. Ethel P. Stirling to Peggy S, Ferguson. 115 Fairclough Brewer to Western Home Builder. ) Prudential Service to etux to Dean C. Thornton VHS Corporation. etux. ng 421 BackmanAbs, Trustee have reexamined Boddie v. Connecticut, supra, and are unable to see wherein that case governs the instant matter. There the impecunious plaintiff was not permitted to tile her complaint with the court until she paid a filing fee of $45 togciljer with. an additional fee of $15 for the service of the papers upon the defendant. We 465 McGhie Land Title, Tr. to Edmund B. Howell etuif. 124 574 Equity Realty tc Const, to Larry R. Stevens etux. 125 578 Equity Realty 8t Const, to Jack S. Green etux. 126 604 McGhie Land Title, Tr. to Richard G. Fairbourn etux. 130 696 etux to Mary Ranck. Revice G. Scott etux to William S. Forrest etux. Phebe Briscoll to Driscoll etal. Phe-b- e Blake Heights Corp. to Harold S. Pettet. Violet E. Marsden to Afton V. Boulter etal. 680 Elbert R. Curtis etux to Prud. Fed. Sav. In the instant matter each plaintiff has. already filed her complaint without any fee being paid therefor, and the sheriff stands ready to serve any and all papers without cost to these plaintiffs. In fact, since March 10, 189?, Utah has permitted impecunious parties to file their papers without cost and to have the services of the sheriff free when needed. Thus we in Utah have for eighty years permitted what the court in Boddie ordered Connecticut to do. J. Chester Jones 121 to L.A. Campbell Const. 401 U. S. 371 (1970). Carol Ann Winewriter etal to Spencer Lynn Nunley etux. 131 Zions 1st Nat Bank to Tr. Vern L. Openshaw. 725 Murray 1st Thrift to Lynr A. Jenkins. 2447102 The Boddie opinion says that if publication is to be had, an amount of forty or fifty dollars will be required; It is not clear from the opinion whether the clerk collects this additional amount and publishes the summons or whether it iB to be paid by the plaintiff directly to a publisher. FOR CODE-A-PHO- MAKE OFFER! - Automatic Answering Service Eugene B. Duffin etux to James R. Amschler etux. Ideal for butty man teho it required to be axcay from office Betty J. Hardman to Hideo Shiba etux. 104 t I I j 105 Louis M. Dimartino SALE MUST SELL! 750 Fairclough Brewer to J. B. Builders Inc. .' While our statute requires the officers to perform services gratis for impecunious'persons, there is no way to compel a newspaper to pub- - John William Evertsen 116 The Rules Committee of the State Bar has not recommended to this court that any change be made in our present procedure, and we see no need for making any. However, the plaintiffs appealed our decision to the the writ of manSupreme Court of the United States, and our order denying to consideration to further directed are 'we give date has been vacated, and of v. Boddie Connecticut, the matter in the light of what was said in the case Sud- bury etux. 371 407 . 112 Tr. 244 McGhie Land Title, Tr. to Richard L. Kunz etux. If our procedure is void as being contrary to some constitutional provision, then there is no procedure in existence for obtaining jurisdiction over absent defendants; and until the legislature by statutory enactment or this court under its power provides a constitutional procedure, an absent defendant. over can be obtained no jurisdiction . etux to Walter J. Garnham etux. . 1st Security Bank to Sec. of jurisprudence for principles which have been established in our systems " the enforcement and protection of private rights. rule-maki- $8. Shadow Mountain Inc, to John T. Crawford III etux, Story, Const., 264, 661. - Jur. 2d Mandamus 2447181 P. 1. U. II. C. 5. Phono 487-175- 4 |