261 F. 254 | D.C. Cir. | 1919
The Hagans brought action in the municipal court against Boss to recover possession of certain premises, alleging that their vendor had rented the premises to’ Boss as a monthly tenant, that the premises had been purchased by them for their home and were necessary for that purpose, that one of them was a war worker,- and that the tenancy had been terminated by a due notice to quit.
Boss appeared specially and asserted that the Hagans were nonresidents of the District of Columbia and moved to dismiss the complaint because they had failed to give security for costs. The motion was overruled, and he entered a general appearance and defended on the merits. There was a judgment for the plaintiffs, and Boss appealed to the Supreme Court of the District.
The Hagans filed in that court an affidavit of merit under rule 19
“Nonresidents ¡shall not commence a suit before a Justice of the peace [now municipal court] without first giving security Cor costs.”
This goes to the jurisdiction of the court over the person of the defendant, and he lias a right to insist upon it; but it is a personal privilege, which may be waived by him, and this Boss did by pleading to the merits. “The defendant had a right,” said this court in Savings & Loan Co. v. Pendleton, 14 App. D. C. 387, “to appear specially to take the objection to the proceeding of the justice without the condition precedent having been complied with by the plaintiff. But, having interposed that objection, he could not go farther and plead to the merits of the case without thereby waiving compliance by the plaintiff with the condition which required him to give security for costs before bringing his suit.” See, also, Railway Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659; Central Trust Co. v. McGeorge, 151 U. S. 129, 133, 14 Sup. Ct. 286, 38 L. Ed. 98; Costello v. Palmer, 20 App. D. C. 210.
In many jurisdictions it is the law that a person who in proper time challenges the jurisdiction of the court over his person,, and after the challenge has been overruled preserves the objection in his answer, does not waive it by answering over aud going to trial on the merits. Arroyo Ditch Co. v. Superior Court of Los Angeles County, 92 Cal. 47, 28 Pac. 54, 27 Am. St. Rep. 91; 7 R. C. L. 78; Lower v. Wilson, 9 S. D. 252, 68 N. W. 545, and note 62 Am. St. Rep. 865. But this is not the federal rule, as is pointed out by Mr. Chief Justice Alvey in the Pendleton Case, supra. It was there urged that, since the objection was renewed and preserved in the subsequent proceeding, the defendant had not waived it by defending on the merits. The learned Chief Justice said that the defendant, by appearing and contesting the case on the merits, lost “his right to contest the ruling of the court below on his objection to the jurisdiction on appeal.”
If the defendant desired to have the ruling of the court reviewed, he should have applied to the’ Supreme Court for a writ of certiorari. Degge v. Hitchcock, 35 App. D. C. 218; United States v. West, 34 App. D. C. 12; Bond v. Hardware Co., 15 App. D. C. 72.
The judgment must be affirmed, with costs.
Affirmed.