Continental Life Ins. & Inv. Co. v. Jones

88 P. 229 | Utah | 1906

STRAUP, J.

This is a case brought in the district court of Salt Lake county to recover for an alleged breach of covenants of a bond executed by the defendants to plaintiff. It is alleged in the complaint that the plaintiff was engaged in the business of life insurance, and that it had entered into a contract with one Castleberry to write insurance, and that he was to pay all moneys collected hy him. to plaintiff at Salt Lake City; that the defendants, one of whom resided in Juab county, and the other in Utah county, executed, at Salt Lake City, a bond, binding themselves for the faithful performance of the duties of Castleberry, and for the payment of moneys by him to plaintiff; and that Castleberry, in breach of his duties, failed to pay to' plaintiff the sum of $800. Summons was served on the defendant Whitmore at Juab county, and on Jones in Utah county. Both appeared and demurred to the complaint on the ground of want of jurisdiction of the person, which demurrers were sustained. The plaintiff filed an amended complaint, which, in substance, was like the original, and issued and served on the defendant Whitmore at Salt Lake county, an alias summons. Whitmore again demurred for want of jurisdiction of the person, which demurrer was also sustained, and the court thereupon made the following order: “The special demurrer of George C. Whitmore, the defendant, having heen sustained, and said plaintiff electing to stand on its amended complaint, on motion of Sullivan & Barnes, appearing specially for defendant Whitmore, it is ordered that this case be„ and the same is, hereby dismissed.” The plaintiff appeals, serving both defendants with notice.

The respondent contends that there is no final judgment from which an appeal can be prosecuted, upon the ground that the ease was dismissed only as to Whitmore, but not as to Jones, and that a judgment, to be final, must dispose of the case as to all of the parties. We think that the case was terminated and put out of court as to all the parties. The action itself was terminated and dismissed. The language of the order is “that this- case be, and the same is, hereby dismissed.” The recitals preceeding the order merely show what it was that moved the court to' act, and why the order was made. The demurrers of both defendants to the original complaint, and Whitmore’s- demurrer to the amended complaint having been sustained, and the plaintiff having elected to stand on its amended complaint; the only appropriate'order that could-be made in the premises was a dismissal of the ease. We see no force to the argument that the case is still pending as to Jones. We think the judgment is final and appealable.

We are also of tbe opinion that the court erred in sustaining the demurrers. There is nothing appearing on the face of the complaints from which it can be said that the defendants were not subject to the process and jurisdiction of the court. A demurrer for want of jurisdiction of the person raises only the question as to whether the defendant is such a person as can be subjected to the process and jurisdiction of the court. The court having jurisdiction of the subject-matter acquires jurisdiction of a defendant either by his voluntary appearance or by process served upon him. The statute provides that the summons and a copy of the complaint may be served “where the defendant may be found.” The argument made that, the defendants not having contracted to perform their obligation at any particular place, the cause of action must be deemed to have arisen where they reside, and therefore the action could not rightfully have been commenced in Salt Lake county, is pertinent to the question of jurisdiction of subject-matter, not of person, and is fully answered in the case of Sanipoli v. Pleasant Valley Coal Company, 31 Utah 114, 86 Pac. 865.

The judgment of the court below is therefore reversed, the case reinstated, the court directed to overrule the demurrers, and to proceed with the case in accordance with the views herein expressed. Costs are awarded to appellant.

McCAKTY, C. J., and FEIGN, J., concur.