1 Mont. 100 | Mont. | 1868
This cause comes to this court on appeal from an order of the court below, vacating and declaring null and void a judgment of that court.
It appears that at the time of filing the complaint in this action a summons was issued. This was quashed by order of court for a defective service. Afterward the plaintiff filed an amended complaint, and had an alias summons issued. The plaintiff, in the mean time, had filed his affidavit for a writ of attachment, to issue against the property of respondent. The respondent appeared in the action, and filed his plea in abatement. The court sustained the plea, and quashed the attachment proceeding. The counsel for
Theodore H. Kleinschmidt, plaintiff, agt. Benajali Morse, surviving partner of V the late firm of E. and B. Morse, de- ( fendant. J
In the Territorial District Court,, Third Judicial District, Lewis and Clarice County, M. T.
The undersigned attorneys for the above-named defendant hereby consent and agree to withdraw all pleas and defenses in the above cause, and will interpose no objections to the taking of judgment in said cause.
Witness our hands this 12th day of March, A. D. 1868.
WILLIAM CHUMASERO,
Attest: GEORGE MAY.
J. H. Shobeb.
This stipulation was filed in the action, and counsel for appellant moved for judgment, which was duly entered at the next term. Afterward the counsel for respondent moved to set this judgment aside, and to declare the same null and void, for the reasons set forth in the following motion:
“And now comes the defendant by his attorneys, William Chumasero and George May, and moves the court to annul and vacate the judgment entered at the last term of this court, in behalf of plaintiff against defendant, for reasons, 1. That the inspection of the records in said case shows an order quashing the summons and return in said case; 2. That the inspection of the records shows that there was no service of summons upon defendant, other than the one quashed, and therefore defendant could not be in default, and therefore that said judgment was improperly entered ; 3. That the stipulation on file in this case, signed by the attorneys, did not authorize and justify the judgment entered in said case.”
WILLIAM CHUMASERO, ’
GEORGE MAY,
Attorneys for Defendant.
The twenty-second section of the civil practice act of this Territory provides as follows:
“ That, after the filing of the complaint, a defendant in the action may appear, answer or demur, whether the summons has been issued or not; and such appearance, answer or demurrer shall be deemed a waiver of summons.”
The first question presented to the court is, did the defendant appear generally in the action? If he did, he waived any summons to appear. What is a general appearance in an action ? A party coming into court in an action without limiting the object for which he comes in. The signing of such a stipulation as the one filed in this cause by defendant’s attorney, has ever been considered a general appearance in a cause. The respondent then, as to this action, was in court, and if he had failed to file a plea to the merits of the cause, the appellant was entitled to judgment if he claimed it. He asked for judgment, and the court properly awarded it.
We feel impelled to say one thing further in this cause. How was that stipulation considered by the attorneys for the appellant, and how did the attorneys for respondent have reason to suppose that the attorneys for the appellant regarded it ? That it was an agreement by the defendant, Benajah Morse, that the plaintiff might have judgment for the amount he claimed. To give it any other effect would be to violate what was the manifest intention of the parties who gave it, the understanding of its effect by the parties who received it, and to recognize and encourage a system of sharp practice not to be tolerated in any dignified and upright court.
The order of the court below is, therefore, reversed and the cause remanded.
Exceptions sustained.
