Deno v. Oveson

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307 N.W.2d 862 (1981)

Julius Ray DENO, Plaintiff and Appellant, v. Arnold OVESON, Defendant and Appellee.

No. 13239.

Supreme Court of South Dakota.

Argued May 20, 1981.

Decided July 8, 1981.

Robert L. O'Connor, Sioux Falls, for plaintiff and appellant.

William P. Fuller, of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.

DUNN, Justice.

This is an appeal from the granting of a summary judgment that dismissed Julius Ray Deno's (appellant) complaint on the merits with prejudice. We dismiss the appeal.

Appellant initiated a small claims action for libel against the Superintendent of the Department of Public Works for the City of Sioux Falls, South Dakota, Arnold L. Oveson (appellee). This action was based on the placement of certain reports in appellant's personnel file by appellee. These reports stated various grounds and actions that eventually resulted in the termination of appellant's employment with the Public Works Department. Appellee moved the *863 action to circuit court for a trial by jury. Appellant then filed an amended complaint, which was dismissed on the merits with prejudice by way of a summary judgment.

In light of the fact that libel is excluded from the jurisdiction of small claims court, SDCL 15-39-1, appellant's action was commenced, if commenced at all, in circuit court by his amended complaint. We hold, however, that appellant never effectively commenced such an action, because a summons was never issued, filed, or served.

While the service can be waived by appearance where a summons has been actually issued and later filed, the failure to issue, file, or serve a summons, as in this case, deprives the court of jurisdiction. Black v. Circuit Court of Eighth Judicial Circuit, 78 S.D. 302, 101 N.W.2d 520 (1960); Ayers, Weatherwax & Reid Co. v. Sundback, 5 S.D. 31, 58 N.W. 4 (1894); SDCL 15-2-30, 15-2-31, 15-6-3, and 15-6-5(d). We conclude by noting that the question of jurisdiction may be raised at any time and even by the reviewing court's own motion. Medley v. Salvation Army, Rapid City Corps, 267 N.W.2d 201 (S.D.1978).

Accordingly, the appeal is dismissed for lack of jurisdiction.

All the Justices concur.