Belknap v. Charlton, 25 Or. 41

Belknap v. Charlton

25 Or. 41 | Or. | 1893

Opinion by

Mr. Justice Bean.

1. It is admitted that the voluntary appearance of a defendant in an action is equivalent to the service of a summons, and waives all defects in the process (Code, § 62), but the contention for defendant is that no appearance, except as provided in section 530 of the Code,— that is, either by answer, demurrer, or giving plaintiff written notice,— can be deemed an appearance within the meaning of section 62 of our Code. Section 530 provides, that a defendant appears in an action when he answers, demurs, or gives plaintiff written notice of his appearance, and until he does so appear he shall not be entitled to be heard, or be served with notice of subsequent proceedings in such action or suit, or in any proceeding pertaining thereto, except the giving of an undertaking in the provisional remedies of arrest, attachment, or the delivery of personal property. The arrangement of this section in the Code under the title of “Notices and Service and Filing of Papers,” as well as its language, indicates clearly that its only purpose is to define what shall constitute such an appearance in an action as will entitle the defendant to be heard, as a matter of right, and entitle *45him to the service of notice of motions and subsequent proceedings in the action required by law to he served: Bank v. Rogers, 12 Minn. 529; Grant v. Schmidt, 22 Minn. 1. It was not, we think, intended to define a voluntary appearance within the meaning of section 62, and has no bearing upon the question of jurisdiction. A defendant may appear and submit himself to the jurisdiction of the court in many ways, without either answering, demurring, or giving plaintiff written notice of his appearance. He may do this by appearing in person, or by attorney in open court, by attacking the complaint by motion, or by an application for a continuance, and in many other ways which will readily suggest themselves to one familiar with the course of judicial proceedings. But before he is entitled, as a matter of right, to be heard in the action, or in any proceedings pertaining thereto, or to be served with notice, he must appear in one of the ways provided in section 530. The question before us, therefore, must be determined without reference to that section, which, as we conceive, has no bearing upon the question as to whether a special appearance for the purpose of applying for the discharge of an attachment is a submission to the jurisdiction of the court so as to authorize it to proceed to judgment in the action without the service of summons.*

2. It is claimed by the plaintiffs that while a defendant may appear specially to object to the jurisdiction of the court over him on account of the illegal service of process, ( Kinkade v. Myers, 17 Or. 470, 21 Pac. Rep. 557,) he must keep out of court for every other purpose, and that any appearance which calls into action the power of *46the court for any purpose except to decide upon its own jurisdiction, is a general appearance, and waives all defects in the service of process, and many authorities are cited to sustain this position. The principle to be extracted from the decisions on this subject is, that where the defendant appears and asks some relief which can be granted only, on the hypothesis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance by its terms be limited to a special purpose or not: Coad v. Coad, 41 Wis. 26; Blackburn v. Sweet, 38 Wis. 578; Pry v. Hannibal & St. Jo. R. R. Co. 73 Mo. 126; Sargent v. Flaid, 90 Ind. 501; Layne v. Ohio River R. R. Co. 35 W. Va. 438, 14 S. E. Rep. 123; Handy v. Ins. Co. 37 Ohio St. 366; Bucklin v. Strickler, 32 Neb. 602, 49 N. W. Rep. 371; Burdette v. Corgan, 26 Kansas, 102; Aultman & Taylor Co. v. Steinan, 8 Neb. 109. This seems to be a reasonable rule, and one which will adequately protect the rights of the parties, and it determines the effect of defendant’s appearance from the nature of the relief which he seeks to obtain. If he asks the court to adjudicate upon some question affecting the merits of the controversy, or for some relief which presupposes jurisdiction of the person, and which can be granted only after jurisdiction is acquired, he will be deemed to have made a general appearance, and to have submitted himself to the jurisdiction of the court, and cannot, by any act of his, limit his appearance to a special purpose. But, if granting the relief asked would be consistent with a want of jurisdiction over the person, he may appear for a special purpose without submitting himself to the jurisdiction of the court for any other purpose. It has consequently been held that an attachment and the action out of which it issues, are so inseparably connected that the defendant *47cannot appear and question the validity of the attachment by a traverse of the facts alleged in the affidavit, or by contesting the truth of the grounds upon which it issued, without submitting himself to the jurisdiction of the court in the action, because by so doing the court is called upon to entertain and determine questions which can be considered only after jurisdiction has attached: Greenwell v. Greenwell, 26 Kan. 530; Bury v. Conklin, 23 Kan. 460; Wood v. Young, 38 Iowa, 102; Duncan v.Wickliffe, 4 Met. (Ky.) 118. But where a defendant appears, and without questioning the merits of the action, or the truth of the grounds upon which the attachment issued, moves to discharge the attachment for want of the jurisdictional facts to sustain it, he asks no relief the granting of which would be inconsistent with an entire want of jurisdiction over the person, and hence does not appear in the action so as to authorize the court to proceed to judgment against him: Drake, Attach. § 112; Glidden v. Packard, 28 Cal. 649; Johnson v. Buell, 26 Ill. 66; Bonner v. Brown, 10 La. Ann. 334.

Now, in the case at bar, the appearance of the defendants was not for the purpose of contesting the truth of the grounds upon which the attachment issued, or the merits of the action, but to vacate the attachment for the reason, as appears from the affidavit acompanying the motion, that the action had been commenced in the wrong county, and that it was a great injustice and wrong to them to have their property thus held under an attachment when there was no means of obtaining jurisdiction over their persons. This appearance was, therefore, not for the purpose of submitting to the jurisdiction of the court, or asking it to entertain or determine any question which could only be considered after jurisdiction had attached, but it was for the sole purpose of objecting to the validity of the attachment for irregular!*48ties in the proceedings, the granting of which would have been entirely consistent with the claim that the court had no jurisdiction of the person. By their motion to discharge the attachment for the reason stated, the defendants appeared for no purpose incompatible with the supposition that the court had acquired no jurisdiction over them on account of a want of service of the summons, and we therefore think there was no waiver of process. Nothing less than the express language of a statute, or the necessary implication therefrom, or the overbearing weight of authority, will justify a court in holding that a defendant in an action commenced in the wrong county, in violation of section 44 of the Code, could not appear and apply for the discharge of an attachment against his property, for irregularities, without being required to submit himself to the jurisdiction of the court for the purpose of the entire action; and it is not material in such case, whether the motion happened to be well founded or not, but the question is, did it go to the merits, or was it based upon some technical grounds supposed to be sufficient to render the attachment invalid. If a defendant may not thus appear and resist what he supposes to be a wrongful attachment without subjecting his person to the jurisdiction of the court, he must either suffer his property to be held under a pretended attachment for an indefinite time, or waive a statutory right to be sued in the county where he resides or may be found. This the law will not exact or require.

4. It was suggested that the remedy of the defendant in such case is by motion to dismiss the action for want of jurisdiction, but such a motion would be unavailing. The court has jurisdiction of the subject matter, and an action is commenced by the filing of the complaint, and there is no provision of the law authorizing it to be dismissed because the summons has not been served: Code, §§ 51, 59. *49It follows, therefore, that the action of the court below in entering judgment against the defendants without service of process upon them was unauthorized, and the judgment must be reversed. Beversed.

Note.—The conclusion here announced is the same as that of the late Judge Deadn in the Federal Court in considering these same sections of the Oregon Code: Lung Chung v. Northern Pac. R. R. Co. 19 Fed. 254, 19 Sawy. 19.—Reporter.