294 N.W. 877 | Minn. | 1940
The defendant corporation at the close of the plaintiff's case rested for the purpose of making a motion for a directed verdict on the ground that it conclusively appeared that the plaintiff was never employed by the corporation or did any work for it. The court overruled the motion to direct, and the defendant corporation then obtained leave to reopen its case, whereupon the plaintiff amended his complaint "to conform with the proof, namely, as to paragraph 1 which reads as follows: 'At all times herein mentioned defendant was a copartnership with its principal place of business in the city of Minneapolis, Minnesota.' That the word 'Inc.' be eliminated from the title and that the title on paragraph 1 be stricken out and that the correct name, that [of] the copartnership at all times hereinafter stated was the Dictating Machine Record Company and not the Dictating Machine Record Company, Incorporated." The defendant corporation promptly objected to the allowance of the amendment of the complaint on the ground that it was *536 "an improper method of bringing parties into court"; that the individuals who constituted the partnership, namely, "M. B. Wahl and A. Winslow, have never been served with summons and complaint in this case." In the course of his objection, the counsel for defendant corporation made the statement that the partnership had done business under the name of Dictating Machine Service Company and not otherwise. Thereupon the plaintiff again obtained leave to amend his complaint by adding to the previous statement, "also known as Dictating Machine Service Company." The court overruled the objection to this last amendment, and counsel for the defendant corporation took exception thereto. The court thereupon stated: "From the light of these amendments, it might be necessary to reopen the case on both sides," and counsel for the defendant corporation asked leave to make a motion, which was for a directed verdict on behalf of the corporation, and counsel again objected to the joining of the partners as defendants as an improper method of service upon the individuals. He stated "that there is but one defendant in this case and that is the Dictating Machine Record Company." This objection was overruled and exception was taken, and counsel for the defendant corporation said, "May the record show defendant reopens for the purpose of proceeding with its defense." (Italics supplied.)
Thereupon the partners were called and put in their testimony on the merits. We do not believe that they thereby waived their objection to the jurisdiction of the court. While counsel did not use the words "special appearance" in making the motion which raised the question of the court's jurisdiction, we think that in substance he made it clear that he did so object to the jurisdiction and that he entered no general appearance for the defendants. In Houlton v. Gallow,
"It is not essential for the moving party * * * to specifically state that the appearance is 'special,' for * * * in determining whether an appearance is general or special the court will look 'to the purposes for which it was made, rather than to what the party had labeled it.' "
If the record shows that the objection to the jurisdiction was fairly raised, overruled, and no general appearance entered, we think that the party's rights are sufficiently saved, and that he does not waive the objection by answering to the merits and proceeding to trial. Perkins v. Meilicke,
The order of the municipal court is reversed with directions to set aside the verdict and to dismiss the action as to the individual defendants.