Cox v. Rocky Mountain Bank of Plains

Summary

The Montana Supreme Court affirmed dismissal with prejudice of C. Cox's breach-of-contract action under Rule 41(e), M.R.Civ.P. (1999), because no summons was issued within one year after the complaint was filed. The court held that later service, voluntary appearances, and the statutory savings provision did not avoid the rule's dismissal requirement. The court also awarded the respondents reasonable attorney fees for an appeal taken without substantial or reasonable grounds and remanded for determination of the amount.

Holdings

1. A plaintiff who fails to have a summons issued within one year after filing the complaint cannot satisfy Rule 41(e)'s alternative service requirement by later serving the defendant within three years.
2. A substituted defendant is entitled to dismissal with prejudice when the plaintiff did not have a summons issued for the original defendant within one year after filing the original complaint; a voluntary appearance within three years after substitution does not cure that failure.
3. Section 27-2-407, MCA, does not save a claim dismissed under Rule 41(e), because such a dismissal is final and has res judicata effect.
4. The respondents were entitled to reasonable attorney fees because Cox's appeal was taken without substantial or reasonable grounds.

Questions Presented

1. Whether the complaint was subject to dismissal with prejudice under Montana Rule of Civil Procedure 41(e) because no summons was issued within one year after the complaint was filed.
2. Whether service on the Bank within three years could satisfy Rule 41(e) despite the absence of a summons issued within the first year.
3. Whether the Estate's voluntary appearance within three years after substitution, or the alleged extension under § 72-3-802, MCA, prevented dismissal.
4. Whether § 27-2-407, MCA, permitted Cox to recommence the action after dismissal under Rule 41(e).
5. Whether the respondents were entitled to attorney fees for an appeal taken without substantial or reasonable grounds.

Disposition

affirmed