202 P. 200 | Mont. | 1921
delivered the opinion of the court.
The defendant has appealed from an order of the district court of Cascade county denying his motion to set aside a judgment entered against him after his default.
The complaint was filed on May 6, 1914. It contains three causes of action. 'Two of them are for the recovery of money under the terms of a written contract. The third is for specific performance of an agreement by defendant, embodied in the same contract, to convey to plaintiff certain land. In entering the judgment no relief was granted under the third cause of action. It was thus eliminated from the case. Upon the issuance of summons an affidavit for attachment was filed with the clerk, and an attachment was issued and served by a levy by the sheriff upon real estate belonging to the defendant! The defendant being absent from the state and the sheriff not being able to find him, service of the summons was made by publication. The order of publication Was made by the clerk on May 13. Upon proof of service, the default was entered on October 7. Judgment was entered on January 29, 1916. The motion to set aside the default and vacate the judgment was filed with the clerk on July 25, 1916. Tim grounds of the
The motion was called to the attention of Honorable H. H. Ewing, the judge presiding in Department No. 2 of the court, on August 19, 1916. Judge Ewing declined to take any action upon it for the reason that all the prior proceedings in the ease, including the rendition of judgment, had been had in Department No. 1 before Honorable J. B. Leslie, who presided in that
Defendant contends that the judgment is void on its face for the reason that the contract made the basis of the action, is not “a contract, express or implied, for the direct payment of money,” within the meaning of section 6656 of the Revised Codes, as construed by this court in Carter v. Bankers’ Ins. Co., 58 Mont. 319, 192 Pac. 827, and other cases; that the issuance of the attachment by the clerk was wholly unauthorized ; and hence the court was without jurisdiction to render the judgment upon proof of a constructive service of summons and should have set it aside.
Plaintiff contends that though the attachment was wholly unauthorized, and though the judgment, when rendered, was void because the court had no jurisdiction over the attached property to enable it to render judgment, nevertheless, by his application, the defendant did not challenge the jurisdiction of the court, but asked for specific relief on a ground which appealed to its discretion, and, having thus assumed that it had jurisdiction, he cannot now assert the contrary
It may be remarked, in passing, that no contention is made by the defendant that the complaint does not state a cause of action. The contention he makes is that it does not state a case warranting the issuing of an attachment. It may bé said in this connection that the allegations contained in the first and second causes of action are sufficient in form and substance to warrant recovery by the plaintiff of the amounts demanded therein.
We think, however, that notwithstanding this rule the
In 2 Ruling Case Law, we find the rule stated as follows: “A defendant making a special appearance for the sole purpose of questioning the jurisdiction of the court over his person does not, in the absence of statutory provisions to the contrary, waive any objection to the jurisdiction. This is the purpose of a special appearance, and all such questions may be subsequently raised in other proceedings. Thus where an order for publication of summons has been made in an action over the subject or cause of which the courts of the state have no jurisdiction, the defendant is entitled to appear specially in order to make a motion to set the summons aside, rather than submit to the hardship of coming in to defend the action. By a general ap
It may be noted that neither ground of the motion presented the question of jurisdiction. The first ground was merely' informational in character, since it only served to bring to the notice of the court the fact that the defendant had not been personally served with process, and hence that the motion had been timely made within the provision of the last sentence of section 6589 of the Revised Codes. The other ground could not have been urged at all, except upon the hypothesis that the judgment was valid, and that it was within the discretion of the court to let in the defendant to make his defense on the merits because his failure to appear sooner was excusable. It constituted a general appearance, precluding the defendant from asserting then or now that the court had no jurisdiction to render the judgment.
Furthermore, there was no merit in the motion. The de
The order is affirmed.
'Affirmed.