193 P. 529 | Mont. | 1920
delivered the opinion of the court.
On September 7, 1917, the plaintiff commenced an action in the district court of Missoula county to recover the sum of $8,000, with interest, which it was alleged the defendants had collected for the use and benefit of the plaintiff, but had failed and refused to pay to it. The defendants were on that day served with summons and a copy of the complaint. On September 20 the defendants filed with the clerk and served upon attorneys for plaintiff a motion asking the court to require the said attorneys to produce and prove their authority to appear as such in the action, and to order a stay of proceedings until such authority should be produced. On the same day they filed and served a motion asking that the action be dismissed, on the ground that it had not been properly brought, in that it had not been authorized by anyone having the right to do so. Each of these motions recited that defendants appeared specially for the purpose of the motion only. The second motion was supported by an affidavit by defendant George P. Smith, president of the plaintiff, The purpose of the affidavit was to show that the action had not been authorized by plaintiff corporation, but had been commenced by one Oettinger, who was without authority to act for the plaintiff in any capacity whatever. On September 29, before either of the motions had been called to the attention of the court, or heard and disposed of by it, the plaintiff, through its attorneys, filed a praecipe with the clerk to enter the default of the defendants for failure to answer or otherwise make their appearance within the time required by law. The clerk thereupon entered the default, and immediately
The question submitted for decision is whether, under the
Section 6719, so far as pertinent here, declares:
“Judgment may be had, if the defendant fail to answer the complaint or to challenge the jurisdiction of the courts as follows:
“1. In an action arising upon contract for the recovery of money or damages only, if no answer, demurrer, motion or special appearance, coupled with a motion has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, or on motion to quash or set aside the service of summons, or to challenge the jurisdiction of the court has teen made and filed, the clerk upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the complaint, including the costs, against the defendant or against one or more of several defendants, in the cases provided for in section 6524. * # # > >
The portion of this section quoted is subdivision 1 of section 1020 of the Code of Civil Procedure of 1895, as amended by
Section 1020, supra, was first enacted by the territorial legislature in 1867. (Laws 1867, p. 162, sec. 150.) It continued thereafter to be the law on the subject in this jurisdiction until it was amended, as above indicated. In the case of Mantle v. Casey, 31 Mont. 408, 78 Pac. 591, there was presented the question whether, under subdivision 2 of the section which contained the same provision as subdivision 1 relating to the clerk’s duty to enter default, a special appearance, coupled with a motion to quash the service of summons, extended the time for general appearance and answer to the merits of the action. The eourt held that it did not, and affirmed an order of the district court of Silver Bow county denying a motion to vacate a judgment entered on default of defendants after a motion to quash the summons had been filed. This decision was rendered on December 1, 1904. At its next session the .legislature amended the section by incorporating the italicized clauses in subdivision 1, which applies to actions on contract for the recovery of money or damages only. Substantially the same amendments were made to subdivision 2, which applies to all actions other than those mentioned in subdivision 1. Subdivision 3, which applies to actions in which summons has been served by publication, was also amended, so as to require, in addition to that theretofore necessary to be made on application for judgment, proof that no motion has been filed, to set aside the service of summons or to challenge the jurisdiction of the eourt. The amended section is not couched in the most appropriate terms and contains some repetition, but the purpose of the legislature' in enacting it is not open to question. Manifestly its intention was to relax what it regarded the harshness of the rule of the older provision as interpreted by this court in the case of Mantle v. Casey, and to permit the defendant to challenge -the jurisdiction of the eourt by motion before he interposes his answer or demurrer, without
Counsel strenuously insist that neither of the motions raises any question of jurisdiction, in that neither is directed at the complaint or summons. They cite and rely upon the case of Donlan v. Thompson Falls etc. Co., 42 Mont. 257, 112 Pac. 445, in which this court had under consideration subdivision 2, and held that notice of motion to dissolve an injunction which had been issued in the action was not such an appearance as would prevent the entry of default by the clerk though filed within twenty days after service of summons. The facts were these: The defendants were all personally served with summons on August 17. On the same day a temporary injunction was issued and served. On September 4 the defendants, by their counsel, served upon counsel for the plaintiff and filed with the clerk a notice that they would on September 15 move the court for an order dissolving the injunction. On September 8 the clerk, on application of plaintiff, entered their default. A motion by defendants to vacate the default was denied. The plaintiff then submitted his evidence, and judgment was entered in his favor. Defendants again moved the court to vacate the default and judgment. This motion was denied. Defendants appealed. The principal contention made in their behalf was that the notice of their intention to move for a dissolution of the injunction, with the affidavits accompanying it, was an appearance in the action, sufficient to prevent entry of default by the clerk. Their contention was overruled, the court pointing out that,
Section 6423 of the Revised Codes authorizes the court,
The statute does not declare when the motion should be
The question arises, then: Does the motion challenge the
It is insisted that under the decision in the Bordan Case, supra, a motion within the purview of the statute must attack the complaint in some way. ■ By their motion defendants sought to have the action summarily ended. This presented the question whether a valid judgment could be rendered upon the complaint.
Counsel suggest and discuss in their brief the question whether defendants’ motion constituted a general or special appearance. This inquiry is not material. Whether it constituted the one or the other, it precluded the entry of default and judgment until it ‘should be determined. The order is affirmed.
Affirmed.