Opinion of the Court-Ducker. J.

the peace, deprive the justice court of jurisdiction to enter the judgment against respondent? We are of the opinion that it did. This requirement is one of substance, designed to assure the defendant of the authenticity of the copy of the complaint served, which informs him of the nature of the accusation and the judgment demanded. It can no more be dispensed with than other statutory requirements essential to a proper service of

summons.

3. Statutory provisions prescribing the method by which a resident defendant shall be notified that an action has been commenced against him in a justice court, to the end that jurisdiction of his person may be obtained, are mandatory, and must be strictly pursued, and failure to observe them in any material manner will prevent the court issuing summons from obtaining jurisdiction of the person of the defendant. Regean v. Harrington, 31 Mont. 294, 78 Pac. 484, 485. See, also, McMillan et al. v. Reynolds, 11 Cal. 372.

4. Appellants contend that the defendant's general appearance, made by filing a demurrer in the cause, was a waiver of any objection to sufficiency of the service. That a party who appears generally by demurrer cannot subsequently complain of want of proper service of summons upon him is a uniformly recognized rule, but applicable only where such general appearance is made prior to the judgment or other proceedings, questioned on account of such defective service.

In this case the demurrer was presented and filed after the time to answer had expired, and after default and judgment had been duly entered. The judgment was rendered without any previous valid service of summons upon the defendant, and for this reason was not merely voidable, but void. The subsequent filing of the demurrer could not therefore operate retrospectively to give life to a void judgment.

5. Appellants assert that there is another plain, speedy, and adequate remedy, and on this ground deny respondent's right to invoke the remedy of certiorari.

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Opinion of the Court-Ducker, J.

Section 5742 of the Revised Laws, it is said, furnishes this remedy. The only portion of the section which might be considered applicable reads:

"The court may also, on such terms as may be just, and on the payment of costs, relieve a party from a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect, but the application for such relief must be made within ten days after notice of the entry of the judgment and upon an affidavit showing good cause therefor."

6. The district court held that this provision did not apply to a judgment wholly void for the lack of jurisdiction of the person of the defendant, and we think the court was right in this conclusion. A defendant against whom such a judgment has been rendered is entitled to be relieved from its effects without being penalized to any extent. So it is clear from the provisions of this statute, providing terms and the payment of costs as conditions of relief from a judgment by default taken against a party by reason of his mistake, inadvertence, surprise, or excusable neglect, that judgments void for want of jurisdiction are not within the scope of the statute. A party's right to relief from such a void judgment is absolute, and not dependent upon any of the elements of excuse enumerated in the statute; nor is it dependent upon any showing as to a meritorious defense, which must appear in the affidavit showing good cause for relief, as required in said section 5742.

7. It is insisted that, because the judgment of the justice court was satisfied and discharged before the rendition of the judgment herein appealed from, certiorari cannot lie to annul the former judgment. We are not impressed with this contention. While the ruling on this point in the case of State ex rel. Reynolds v. Laurendeau, 27 Mont. 522, 71 Pac. 754, cited by appellants, seems to be in accord with the position taken by them, the contrary view is, in our opinion, maintained by the weight of better authority. Passing upon the

Opinion of the Court-Ducker, J.

question in Clark v. Ostrander, 1 Cow. (N. Y.) 437, 13 Am. Dec. 546, the court said:

"The settlement and set-off of the judgment does not supersede the certiorari. The defendant, in the small judgment, did no more than he might have been compelled to do by execution. He paid it, but this will not prevent a certiorari."

In 24 Cyc. 767, 768, the rule is thus stated:

"It is no objection to the issuance of a writ of certiorari * * that the judgment has been paid."

And again in 5 R. C. L. 258:

"It sometimes occurs that the petitioner does not seek relief by certiorari until the judgment rendered against him has been satisfied, but even this will not prevent the issuing of a writ of certiorari, or supersede one already brought."

No sound reason can be advanced why a judgment void for want of jurisdiction cannot be set aside in certiorari proceedings, solely because satisfaction of such judgment has been coerced by execution or the judgment otherwise paid.

The judgment appealed from is affirmed..

Points decided

[No. 2347]

MARIE A. NICHOLS, RESPONDENT, v. WESTERN UNION TELEGRAPH COMPANY (A CORPORATION), APPELLANT.

[191 Pac. 573]

1. APPEAL AND ERROR-FAILURE OF COMPLAINT TO STATE CAUSE OF ACTION PROPERLY RAISED FIRST ON APPEAL.

In an action against a telegraph company to recover damages for mental anguish caused by failure to promptly deliver a death message, where it appeared from the complaint itself, and from the evidence, that the message was interstate in character, it became the duty of the supreme court on appeal to apply the federal law applicable to that kind of a message, and, if under the law applicable thereto the complaint failed to state a cause of action, it was the duty of such court to reverse the judgment, though the question was presented for the first time on appeal.

2. COMMERCE-FEDERAL LAW GOVERNS DAMAGES FOR FAILURE TO DELIVER INTERSTATE MESSAGE.

Since the amendment of June 18, 1910, to the interstate commerce act, which operated to extend the federal authority over telegraph companies as to their interstate business, no recovery can be had in a state court for damages sustained for mental anguish suffered for negligent delay in delivering a death message, when unaccompanied by physical injury.

3. TELEGRAPHS AND TELEPHONES FEDERAL LAW CONTROLLING, THOUGH NOT PLEADED.

In an action in state court for damages for mental anguish from delayed delivery of a death message, it is the duty of the court to apply the federal interstate commerce act, as amended by act of Congress of June 18, 1910, if the evidence establishes that the message was an interstate one, though the complaint does not plead an interstate message; the federal law being supreme and superseding all state law.

4. STATUTES-INTERSTATE COMMERCE ACT TO BE APPLIED BY STATE COURT, THOUGH NOT PLEADED.

In an action to recover for mental anguish caused by failure to promptly deliver an interstate death message, a state court should apply interstate commerce act, as amended by act of Congress of June 18, 1910, extending the federal authority over telegraph companies as to their interstate business, though not pleaded in the answer.

APPEAL from the Seventh Judicial District Court, Esmeralda County; J. Emmett Walsh, Judge.

Action by Marie A. Nichols against the Western

Argument for Appellant

Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

Beverly L. Hodghead and H. H. Atkinson (A. T. Benedict, of Counsel), for Appellant:

Since the amendment to the interstate commerce act, June 18, 1910 (36 Stats. L. 539), relating to telegraph companies, damages for mental anguish cannot be recovered upon an interstate message.

By the great weight of authority in the various state courts as well as the unbroken rule of the federal courts, confirmed by the recent decision of the Supreme Court of the United States in Southern Express Co. v. Byers, 240 U. S. 612, damages for mental anguish, apart from physical suffering as in the Barnes case (65 L. R. A. 666), or wilful, wanton, or malicious injury, as in the Burrus case (L. R. A. 1917D, 750), cannot be recovered. Westwater v. Grace Church, 140 Cal. 339; Munro v. Dredging Co., 84 Cal. 515; Morgan v. S. P. Co., 95 Cal. 510; Newman v. Smith, 77 Cal. 22; Spade v. Lynn Railroad Co., 47 N. E. 88; Jones on T. & T. Cos., 2d ed., sec. 609, pp. 790, 791; W. U. T. Co. v. Chouteau, 49 L. R. A. (N.S.) 211; 37 Cyc. 1775; Am. & Eng. Ency. Law, 1078; Cur. Law, vol. 6, p. 1678. The decisions of the federal courts are without conflict. W. U. T. Co. v. Wood, 57 Fed. 471; Gahan v. W. U. T. Co., 59 Fed. 443; Chase v. W. U. T. Co., 44 Fed. 554; W. U. T. Co. v. Sklar, 126 Fed. 295; Rowan v. W. U. T. Co., 149 Fed. 550; W. U. T. Co. v. Burrus, 179 Fed. 92; Jones v. W. U. T. Co., 223 Fed. 301.

This court must be controlled by the decision of the Supreme Court of the United States upon the effect of the amendment of June 18, 1910, to the interstate commerce act, the latest expression being found in Postal T. Co. v. Warren-Godwin, 251 U. S. 27, and W. U. T. Co. v. Boegli, 251 U. S. 315. "The act of Congress regulating a subject of interstate commerce is not to be narrowly construed for the purpose of preserving the