JUSTICE COURTS ‑- JURISDICTION OVER PERSON BY SERVICE OF SUMMONS OR NOTICE ‑- FILING OF COMPLAINT

JUSTICE COURTS ‑- JURISDICTION OVER PERSON BY SERVICE OF SUMMONS OR NOTICE ‑- FILING OF COMPLAINT

A notice or summons returnable and/or served on the defendant more than twenty days after the filing of a complaint in justice court is a nullity, and the justice of the peace does not thereby acquire jurisdiction over the defendant.

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                                                                December 6, 1957

Honorable Hewitt A. Henry
Prosecuting Attorney
Thurston County Court House
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 139

Attention:  Mr. Harold R. Koch, Deputy

Dear Sir:

            We paraphrase the question asked in your previously acknowledged letter as follows:

            Does a justice of the peace have jurisdiction to issue a notice or summons more than twenty days after filing of the complaint or claim in a civil action?

            We answer in the negative.

                                                                     ANALYSIS

            RCW 12.04.010 requires the notice to be returnable "not less than six nor more than twenty days from the date of filing the complaint."

            RCW 12.04.020 requires the summons to specify a return date "not less than six nor more than twenty days from the date of filing plaintiff's claim."

             [[Orig. Op. Page 2]]

            The case ofNelson v. Campbell, 1 Wash. 261, is determinative of the present question.  In that case the supreme court held that a justice of the peace loses jurisdiction of a civil action when a continuance is granted for more than sixty days, and also loses jurisdiction when the defendant has been cited to appear on a date more than twenty days from the date of filing the complaint.

            InBeachel v. Beachel (Pa. Com. Pl.), 25 Northumberland Leg. Jour. 206, it was aptly stated:

            "A justice of the peace has only such jurisdiction in civil actions as is expressly granted him by statute and the records of the justice of the peace must affirmatively show jurisdiction, both as to the parties and the subject matter. . . ."

            In that case, it was held that a summons was invalid where made returnable more than eight days after it was dated under a statute providing that it should be served not more than eight days nor less than five days after the date of its issuance.  Other Pennsylvania cases holding to the same effect are Hilands v. Shade (Pa. Com. Pl.), 63 D. & C. 159; Geisen v. Conrad (Pa. Com. Pl.), 85 D. & C. 219; andYaple v. Girton (Pa. Com. Pl.), 34 Luzerne Leg. Reg. Rep. 134 [[34 Luz. Leg. Reg. Rep. 134]].  See alsoHowell v. Eastvurn (Del.) 2 A. (2d) 899.

            In addition, it has been held that the justice has acquired no jurisdiction by a summons made returnable in less time than that prescribed by law, in a greater number of days after its date than specified by statute, on a holiday, or by a summons stating an impossible return day.  31 Am.Jur., Justices of the Peace, § 65, p. 744.  See also 6 A.L.R. p. 851 and 97 A.L.R. p. 752.

            Accordingly, you are advised that it is the opinion of this office that a justice court loses jurisdiction if either a notice or summons is not served within the time fixed by statute so as to require a defendant to appear within twenty days from the filing of the complaint or notice.  Therefore, if service is not made within twenty days as stated in your question, it will be necessary for  [[Orig. Op. Page 3]] the plaintiff to file a new action and pay an additional fee in order to confer jurisdiction upon the court.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMITT
Assistant Attorney General