99 P. 1046 | Or. | 1909
Lead Opinion
Opinion by
The plaintiff’s counsel object to a consideration of the sworn statements referred to, on the ground that no bill of exceptions has been sent up, and, such being the case, the affidavits, though included in the transcript, do not constitute any part of the record. These voluntary declarations under oath form the proof which tends to show that the defendant is a foreign corporation, and, like all other evidence, should have been included in bill of exceptions and transmitted to this court, if they were to be considered. Farrell v. Oregon Gold Co., 31 Or. 463 (49 Pac. 876) ; Nosler v. Coos Bay Nav. Co., 40 Or. 305 (63 Pac. 1050: 64 Pac. 855); State v. Kline, 50 Or. 426 (93 Pac. 237). The complaint does not state that the defendant was not created by or under the laws of Oregon. It will be remembered that the judgment order states that the defendant, by its attorneys, “made a general appearance.” This narration seems to negative the fact that any reliance was placed on the service of
“No corporation is subject to the jurisdiction of a court of this State, unless it appear in the court, or have been created by or under the laws of this State, or have an agency established therein for the transaction of some portion of its business, or have property therein; and in the last case only to the extent of such property at the time the jurisdiction attached.” Section 528, B. & C: Comp.
A corporation appears by attorney in all cases. Section 1050, B. & C. Comp. A voluntary appearance of the defendant shall be equivalent to personal service of the summons upon .him. Section 63, B. & C. Comp. A defendant appears in an action or suit when he answers, demurs, or gives the plaintiff written notice of his appearance. Section 542, B. & C. Comp. An attorney is a person authorized to appear for and represent a party, in the written proceedings in any action, suit, or proceeding, in any stage thereof. Section 1049, B. & C. Comp. An attorney has authority to bind his client in any of the proceedings in an action, suit, or proceeding, by his agreement, filed with the clerk or entered upon the journal of the court, and not otherwise. Section 1058, B. & C. Comp. These excerpts from the statute have been given to indicate the method of procedure in the foregoing cases and to show the authority of an attorney to bind his client.
It is not pretended that the attorneys who, by stipulation, secured an extension of time within which to plead or answer, were not empowered to represent the
“A general retainer does not authorize an attorney to accept service of process by which the court acquires jurisdiction over the party; but after the court has acquired jurisdiction over defendant’s person, the attorney may accept service of all necessary and proper papers during the progress of the cause.” 4 Cyc. 935.
The legal principle thus asserted may be applicable where no statute regulates the matter, but in this State an attorney has authority to bind his client in any of the proceedings in an action or suit by his agreement filed with the clerk or entered upon the journal of the court. Section 1058, B. & C. Comp. This enactment is sufficiently comprehensive to empower an attorney, under his general retainer, to admit in writing the service of process whereby jurisdiction of the person of his client is conferred. The right of the attorneys who signed the stipulation for the defendant to represent it is not controverted. In such case the rule promulgated in Conrey v. Brenham, 1 La. Ann. 397, 398, is controlling, viz: “The dignity of the profession, and the necessity,
The defendant’s attorneys, who were originally retained, having been granted an extension of time in which to plead or answer, and such stipulation having been filed in this action, thereby appeared generally and subjected their client to the jurisdiction of the court; and, this being so, the judgment is affirmed.
Affirmed.
Rehearing
On Petition for Rehearing.
[102 Pac. 1.]
Opinion by
The defendant herein appeared in the latter manner, and, having submitted itself to the jurisdiction of the court, it is bound by the judgment rendered; and, this being so, the petition for a rehearing is denied.
Affirmed: Rehearing Denied.