Martin v. Nelson

533 P.2d 897 (1975)

Leona M. Nelson MARTIN, Plaintiff and Respondent, v. George L. NELSON, Jr., Defendant and Appellant.

No. 13805.

Supreme Court of Utah.

April 4, 1975.

Leon A. Halgren, Ryberg, McCoy & Halgren, Salt Lake City, for defendant and appellant.

Gayle Dean Hunt, Mikel M. Boley, Salt Lake City, for plaintiff and respondent.

HENRIOD, Chief Justice:

Appeal from a judgment entered on a complaint based on accrued amounts allegedly due in a divorce action. Reversed with costs to defendant.

Mr. N, a California resident, was served with process by a California peace officer, who, under oath in a return of service of summons, wittingly or unwittingly falsified the facts by stating therein that he endorsed the date and place of address, together with signing his name on the Summons, as is required by Rule 4(j), Utah Rules of Civil Procedure. The paper involved shows, without controversy, that such statement was untrue.

Service of process here was defective, not only because of the false return but because it required answer in 20 days instead of 30 days.[1] Such service is jurisdictional.[2] Defendant, as was his right, appeared specially and raised the point.

The case is remanded with instruction to vacate the judgment and let the parties take it from there.

ELLETT, CROCKETT, TUCKETT and MAUGHAN, JJ., concur.

[1] Title 78-27-25 et seq., Utah Code Annotated 1953.

[2] Rule 4(j), Utah Rules of Civil Procedure.