*1 3(38
Argued February 14; April 24, affirmed
MUTZIG HOPE (158 (2d) 110) *4 Before Chief and Justice, Belt, Rossman, Kelly, Lusk, Brand Hay, Associate Justices. Bailey, Eugene, Bayly, appellant. D. T. for Wright, L. E. Q. Matthews Charles both of (Pendergrass, Spademan Portland & Bullivant and Christopherson all Matthews, & of Portland, on the brief), respondent.
BRAND, J. upon a
This case arises motion of the defendant, judgment Hope, a default to vacate which was rendered against him in non-tortious action on the ground that the court was without of his person. denying an From order the motion, de- appeals. fendant plaintiff, Mutzig, brought
On December 17, 1981, Oregon an the circuit court for Multnomah owing by to recover rent as lessee of county, Oregon. complaint Deschutes lands in The A summons, the usual form. also in usual form, was issued and the return discloses that service was made upon personally county by the defendant in Lane county. appear of that sheriff The defendant failed to expiration twenty days, upon and after the motion of plaintiff, judgment a default was entered in favor plaintiff. judgment was entered on Feb ruary February 9, On motion of *5 by supported plaintiff, and affidavit, under the the duly provisions L. A. an order 6-802, of O. C. was in the circuit court for Multnomah made and entered renewing judgment, directing reentry the the and that issue thereon. thereof, execution On October special appearance defendant filed a 19, 1943, the and judgment. quote cancellation moved the of We from the motion: Ralph Hope, A. Defendant, “COME NOW
by
attorney,
Bayly,
points
D. T.
and
his
out to the
judgment
roll in the
above
Court
entitled
Complaint
case shows
without extrinsic evi-
transitory,
dence that the action is
founded on
nature
but not
a
tort and
the Proof of Service of
Complaint
Summons, that the Summons and
were
by Deputy
County
served
of the Lane
Sheriff
County,
Ralph
on
within Lane
the Defendant,
A.
Hope,
[Error-
on December
correct
—the
1931.]
December
date is
by
Oregon
“WHEREAS,
Section 1-403,
Code
effect at the time of the
1930, in
above
service
by
Complaint,
interpreted
and
as
Dun-
Summons
Company,
ham vs Schindler and
Brown
judgment. vacate the motion to 10, 1944, On appeals. judgment and the defendant denied BRAND, J. lapse plaintiff reason of contends that years should be
of more than the defendant eleven from limitations, or the statute barred laches, validity judgment. attacking But, of the now acquired jurisdiction person of the never *6 being nullity of summons defendant, the service appearance, judgment being general the would there no absolutely judgment void. such conditions the be Under might any upon time, vacated at either motion of upon its motion, the or the court own defendant delay or of the defendant to failure vacate move operate judgment. same could not to validate the 47 86 P. 114 593, v. Or. Am. Huffman, 610, Huffman Rep. Wade, 92 176 P. 943; 642, St. Wade v. Or. 7 192, A. L. R. Finch v. 1143; Reduction and Chemical Pacific Mfg. P. 296; 113 234 Or. Lothstein Fitz Co., (2d) question patrick, 171 Or. 919. The in by personal therefore, is whether case, this service of county summons in Lane the circuit court of the state county Oregon acquired jurisdiction for Multnomah of judgment. to render the default transitory, being upon The action was founded upon privity privity and not of contract of estate. (2d) 21 P. Abrahamson Brett, concerning statute non-tortious provides that actions
“* * * the action shall be commenced and county defendants, tried in the in which the may them, reside or be found at either the com- provided further, of the action mencement that if none defendants resides this state plaintiff tried in the action complaint.” L. A. may designate 1-403. O. C. in his appears the action record, that For all county. proper if de- Thus, filed in the have been county, or did Multnomah resided in fendant, fact, Oregon, anywhere the action in the state not reside county. properly brought in Multnomah On was in Mult- not found defendant was hand, other since county, within the state he, fact, nomah resided Oregon, in Multnomah then the venue but not erroneously laid. was question, upon first, consider the as-
We will sumption proper action filed in the assumption second, action was and, wrong county. Upon assumption, the first filed only question would be whether circuit court of Oregon acquires jurisdiction in a non-tortious tran- sitory properly action when venue is laid, but serv- Upon ice in a is made different the state. assumption, question second would be whether the acquires jurisdiction when is filed in *7 wrong being personally the but the defendant (though county served within the state not in the in filed) appear object which the fails to or to improper judgment until after default has against him. been entered
First, we shall assume that the defendant resided in county Multnomah he that was nonresident of the proceed to consider
state whether the court ac- jurisdiction by quired county. in service Lane provides: statute * * “* If the defendant be served within the county in which the action is commenced shall he appear complaint days and answer the within ten service, from date but he be served any county appear in he shall other the state twenty days complaint from and answer the within L. A. service.” 1-602.
the date of the O. C. contemplated appears Thus it to that summons may, county in some at in a least, instances served than which action was other one commenced nothing in the statute itself and there is which would provisions inapplicable make its to tran- non-tortious sitory actions.
Again, provides: the statute “* * * anyAt time after the action is com attorney, plaintiff, may menced the or his issue as many original may either summonses as elect such to deliver one of county summonses the sheriff of each in which service on defendant is de § 1-601. L. sired.” C. A. O. provision, applies of course,
This to eases there are several defendants who or be reside again, counties. here, found nothing different But is there in the to that it statute indicate also apply only to a ease in which there is one defendant. aIf sued in the is his residence, plaintiff but uncertain as whether the de- fendant is to be found in or in another, permit statute would seem of more than issuance original delivery one summons and the of them to sheriffs the different counties so that the defendant might though be county where found, served even not found where suit was filed. strongly supported
This view is
decision
Ry.
Drayton,
F.
Atchison, T. & S.
Co. v.
377 brought. than that in which the action had been provided: statute “Summons to other counties. When the rightly brought any county, according
is to the provisions of this code a summons shall be issued any county, against any other one or more of the plaintiff’s request.” Compiled defendants at the Stats, § of Neb., 1922, 8570.
Referring
closely
to that statute, which
resembles
appeals
O. C. L. A.
1-601,
circuit court of
said:
“* ® " Again, ample provision is made for
service in counties
than
other
that where the action
brought.
provision applies
is
This last
where there
only
(Carter
one defendant
v. Insurance Co.,
83 Neb.
N.
810, 120
455;W.
Nebraska Mutual Hail
Meyers,
Insurance Co. v.
66
657,
Neb.
92 N. W.
572)
or Avhereno defendant is
resident
brought (Sullivan
the suit is
where
v. Radzuweit,
30
15 N. W.
Eichoff v. F. & Co.,
C.
Minn.
We
parties
interests of
plaintiff
protected by holding
will be best
that when
properly brought
county, personal
suit is
in one
service
person
be had
a natural
as defendant in
*9
may
county Oregon
found. If a
he
he
of
where
other
but was
resided
Multnomah
county
Oregon,
physically
and if
of
the
in another
upon
prohibited personal
him in a
rule
service
compelled
plaintiff
Multnomah,
than
would be
other
provisions
under
to resort
substituted service
provides:
of the statute which
personally,
“In
the defendant
all other cases to
family,
person of the
found,
if he
not
to some
or,
above the
be
dwelling
age
years,
14
of
at the
house
place of
of the defendant.” O. C.
usual
abode
(6).
L.
subd.
A., § 1-605,
according
is not
to the
substituted service
Such
must affirma
law and
record
of
common
course
authorizing
tively
such substituted serv
show
fact
Oregon
v.
& C. R.
Sedlak,
462;
v.
9 Or.
Caro
Hass
ice.
Oregon Co., 30
10 Or. Weaver v. Southern
Or.
Co.,
510;
Artisans, 46
P.
Hildebrand v. United
Or.
171;
48
348,
Rep. 852.
under
Am. St.
Service
79 P.
134,
347, 114
(6), supra,
provisions
§ 1-605,
L.
subd.
is
A.
of O. C.
personal
unsatisfactory
service. Ac
substitute for
an
depend
jurisdiction
quisition whether
would
person
family,”
the sheriff served “some
or not
always
question
free from
is not
doubt. Car
which
Heineborg, 2
Cornelius,
McFarlane v.
75;
Or.
land v.
always
Nor
it
clear
325,
P.
Ü3? that in which other than service Oregon procedure under the A summons is filed. informing process, is a mere notice defend- but complaint the action and the need to answer ant of Whitney specified time. 17 Or. Blackburn, within Rep. 11 Am. St. Personal service gives personal found him notice defendant where on the county of his residence, if served he is and, outside twenty days appear. allowed Substituted personal never result in service notice within the appearance. time allowed for A defendant absent from days might adjudged his for ten residence de- “person on fault reason substituted service some *10 family” any knowledge he before received had an action been filed.
Turning authorities, to the the case of Fratt appears P. Wilson, 542, 706, 30 Or. 47 decisive of the question The here. defendant was a nonresident of the provisions under the hence, state and of the venue may C. L. A. statute, 1-403, O. “the action be tried county any plaintiff may designate in in his complaint.” plaintiff The was authorized to, and did, bring county. in suit Multnomah Summons was served county judgment in Lake was taken default. applied vacating The an judg defendant order ground jurisdiction. ment on the that the court had no It was the defendant’s contention that service of sum transitory a mons on in a nonresident action does not person confer it unless occurs in county pending. supreme where the action is might any court held that service be made in in Oregon. properly If, when venue is may laid, service be a had in other than that in which the suit is filed in the case a think of nonresident of a we state, apply rule must properly same when venue is laid in 380 being in filed state, a of a suit
the ease of resident being had in service of his but residence, county. another In Lewis, the case of Brown v. * * “* transitory in actions court said, may
against a commenced nonresident action be any may personal county plaintiff service select, anywhere give jurisdic- within State will supra, v. Wilson, tion.” The court cited Fratt with approval. involving a an Brown v. Lewis was case against foreign corporation general and the action may any statement that action be commenced “the ’’ foreign county plaintiff may applied cor- select, porations lawfully doing has state, business this Updegraff, ex rel. v. been overruled. State 172 Or. (2d) applied place 141 P. But as of service against person an action natural when venue is quoted properly portion is a laid, correct state- ment of the law. Updegraff
In the case we that a non- held may against foreign corpora- tortious action filed only principal place tion where it maintains its of busi- (residence) ness the cause of arose, where personal upon corpora- but that service statutory agent tion be made for service place at “* * * where he found the state. *11 position analogous presi-
his is to that of the principal corporation, dent or other officer of the serv- upon personal upon corpora- is ice whom service Again, the court tion.” said: “Assuming properly ques- that venue is laid, a concerning proper place tion arises of service. corporation aWhere domestic is sued in the principal place its of of service business, upon principal anywhere made one of its officers supra Oregon [61 v. P. Co., the state. & Davies personal, 906]. 123 P. service as Such distinguished from substituted service.” State ex (172 253). supra Updegraff, Or. 246, rel. upon early of The defendant ease Dun relies In Shindler, 17 Or. 20 P. that ham transitory plaintiff a action Wasco case, county against The & Co. return shows Gr. Shindler county upon that in Multnomah summons was served a of & Shindler, “D. member of the firm W. Gr. Shindler appearance by was Co.” There no defendant and upon plaintiff, judgment a motion default was entered the clerk of Wasco in vacation. There appeal upon ground complaint was a direct that the failed to state cause action, that the court was person without of the defendants authority and that clerk was without judgment. judgment enter the default was re per opinion. properly in a versed curiam The court partnership held that a can not be sued as such and acquire jurisdiction by having that the court could not party service of summons made not named except therein, case of substituted service, and & Shindler Co. were served the service Gr. upon D. W. It Shindler. was held that: *
“* * certifying The sheriff in his return company the latter was member of said was province no evidence that he was It so. was not the sheriff to find out who the members of the * * *” firm of Shindler Co., G. & were. ground was a This sufficient judg- reversal of the ment, but the court further went and discussed matters service. The court said: “* * * The action was a one, and required by the code to be commenced and
382 county or either defendants in which might
tried in at the commence found or of them resided parties resided if none action; ment of the any county in the be tried could state, the in the which same complaint. designate might in plaintiff could the summons an action which It was any that in which than other be served attorneys respondent’s laid, and the was venue * * * Any one it. understood so Lave should an action that such know must the code reads who herein has attempted commenced to be the one as he resides brought against a where defendent to be or is *” * * supra Shindler, v. Dunham found. 258). (17 256, 257, Or. as appears the case to have considered court
The
wrong
but there
in the
one which
purported
nothing
to disclose who
in the record
is
they or
were, or where
&
Shindler Co.
members of G.
recognized
any
residence. The
had their
of them
to another
be sent
summons
local actions
that in
thought
it
not be done
could
service, but
have confused
transitory
The court seems
actions.
question
question
of service.
venue with
supra,
Wilson,
v.
opinion
Fratt
inconsistent with
Updegraff,
supra, and
ex rel. v.
State
Lewis,
Brown
supra,
to have been overruled.
must be deemed
against
properly
named
had been filed
If the action
we think
defendant,
residence of such
at the
another
would not now
fact of service
pronounced which was
the condemnation
warrant
concerning
discussion
event,
In
case.
Shindler
unnecessary to the
and service was
decision
both
controlling.
can not be deemed
case and
Bridge Co.,
cerning ap venue and relative those to service which peared supra. v. Shindler, Dunham The Deschutes Bridge against case was a domestic *13 corporation. The court said: in all
“But such cases it is essential to the upon of the court that service the de- county or some of fendants, them, be had in the brought; where the action is otherwise will the court authority judgment. be without to render valid * * Bridge supra Brown Co., v. Deschuttes (23 7,8). Or. Holgate transitory case was also a action against corporation. a domestic The court said: necessary “It is in the of commencement an against corporation
action of under the Civil Code acquire jurisdiction in State, this order to over person, return of service of summons duly copy show that of a authenticated thereof, and copy complaint, were to delivered one designated of the officers thereof in said sub division 1 of said section 55 the Code, of either in county principal where its office is or situated, county of where cause action arose. * * *” Holgate (16 supra P. Co., v. O. R. R. Or. 123, 126). expressly repudiated
This doctrine was in Davies v. Oregon Co., & Placer Power Or. brought against
That was a action which was corporation a domestic Baker where the principal defendant’s office Avaslocated. Service Avas upon principal corpora- made one officers of the county. tion Multnomah Such serAdce said to equivalent personal against service an in- Referring it and was held valid. dividual to the Hol- gate court said: case, the * “ * * however, it far, So as rules that service president
of summons ‘the or head other 38-1 secretary, corporation, managing, cashier, delivery agent’ to is restricted to snch offi principal where the cers office of corporation situated, it must be over is considered as cases commenced where ruled *” * * (Italics ours). corporation resides. Oregon supra (61 Co., Placer &Power Davies v. 601). Bridge, Holgate Shindler, Deschuttes
If holding that when an are be understood as cases county, proper service of sum they had within that then must also be mons definitely supra, Wilson, v. are overruled Fratt Oregon supra, & Lewis, Davies Placer Brown Updegraff, supra. rel. v. Co., and State ex Power authority, Upon reason we conclude both *14 transitory if the was a action, defendant resident in this county, aor nonresident of the state so of Multnomah properly county, in laid Multnomah venue was that the acquired jurisdiction of the defendant court then the eountty. by personal also in Lane See service Hubner 557, 136 a divorce case in Hubner, 67 Or. which parties of had “If either the resided said, the court county brought] [where the suit was in Clackamas made in this in have been case Multnomah service could Irrigation Bailey county.” Co., see v. Malheur And 910. 54, 57 P. 36 Or. question. Assuming approach second the
nowWe Oregon, was a resident of not but that the county county, did the Multnomah cir- of Multnomah personal acquire in service cuit judg- county as render valid the default so to Lane against the In entered defendant? was ment which plaintiff support asserts that if case, the venue of his improperly failure the error was waived laid, object. appear and to relating in to venue actions statute chapter “Place entitled, Trial,” of and
is found is as follows: action com- “In all cases the shall be other in in which the defend- and tried
menced may at in reside or be found them, either of ants, or provided, action; commencement' of alleged an the same tort, founded on may where the the either in be commenced arose or where of action cause may or be found resides them, or one defendants, at the commencement provided action; resides if none of the defenadnts further, this any county may be tried state the action complaint.” designate plaintiff in his § L. A. 1-403. C.O. authority, weight overwhelming
By procedural relating held to be are to venue statutes jurisdictional merely, strict sense. and not * * “* laid in venue is If, therefore, having general power county, wrong to the court thereby subject cognizance matter is not take provided jurisdiction, defendant does deprived apt object move time judgment proper render to the ” p. parties. binding Venue, 146, J., 67 C. on Estoppel of Defendant —a. “Waiver general that venue rule is Since In General. jurisdiction, procedure and not to relate statutes particular in a right to be sued of defendant *15 personal privilege which mere is a district juris general has the waive, where he subject are cases matter, and there of the diction the case involves apply rule whether this merely subject action or matter of 386 very person. generally objec- held It is that by failing are
tions to
waived
to raise
question
proper
and manner.”
67
time
p.
§
92.
Venue, 148,
C.
See also 67 C.
J.,
Venue,
J.,
p.
§
§
pp. 11 and
1,
12,
24,
and
it is
action shall
brought,
“*
[*]
in a
[*]
aWhere
different
in a
statute
particular county
provides
of the State,
an
interpretation
depends
it
of the statute
judgment
Ordinarily
whether
void.
such
making
judgment
is not construed as
statute
jurisdic
void. The defect is one of
not of
venue,
* *”
*
Judgments, §
tion.
Restatement,
7, subd.
Judgments,
also, 1 Freeman on
b. See
5th Ed.,
§
v.
130
P.
368;
Gallus,
619,
Or.
Geis
278
Hanzlik
969;
222
95,
v.
110
P.
Hanzlik,
Or.
1081; State ex
v.
rel.
Co.,
Consol.
Almeda
Mines
107
212
18,
Or.
P. 789;
v.
24
Wadsworth, Or.
34 P.
494,
Johnston
ton
13; Hous
Bayne,
(Texas);
v.
Oil
38? judge intent that the court or thereof should have place power change upon timely of trial motion, supported affidavit. support judgment
In of his contention that the was void for want of because venue was im- properly the defendant cites laid, cases, two Dunham v. (17 supra 326), Shindler, 256, 20 P. we have already Bridge discussed, and Brown v. Deschuttes Co., supra (23 177). In 7,Or. 35 the latter case, the plaintiff brought county against an action in Crook corporation having principal domestic its office in Linn county. appeared The defendant and answered, and afterwards moved to the venue to Linn ground on the that the action had been commenced wrong county. The motion was denied; the cause county; judgment was tried Crook went for the plaintiff. appealed. The defendant This court held nullity, general that the service was but that equivalent appearance personal was service and the judgment affirmed. was The court said: being damages transitory, “The action might brought any county be within within the might state where the defendant resided or be found commencement at the thereof. Subdivision (Hill’s § 45), provides section that Code, Civil Code judge may change the court or thereof
place not been provision, appears of trial it when that the action has brought proper county. But this apprehend, apply we does not to tran sitory In such it actions. case cannot be said that brought wrong county action been has brought any county since it be where service of summons had.” be Brown Deschuttes Bridge supra. Co., holding against In an a domestic coi’- poration may any county within where the might be found at the commencement thereof, might is, where service of summons had, Bridge long
Desehuttes
case has
since been overruled,
being
firmly
inconsistent
established
with
doctrine
corporation
of this state to the effect that
domestic
only
principal
can be sued
wherein its
place
located,
of business is
or where the cause of action
*17
Holgate
supra;
Co.,
arose.
v.
P. R. R.
ex rel.
O.
State
supra;
Co.,
ex rel. v.
v. Almeda Consol. Mines
State
Packing
supra;
Updegraff,
Co.,
Winter Union
It be observed that will Desehuttes Bridge appears Oregon case Volume 23 of the Reports, prior it decided in to the decision Oregon Holgate P. R. R. in Volume 16 of v. O. Co. Reports. holding Furthermore, that it is essential jurisdiction that service be had on a defendant cor to county brought, poration in where the action is Updegraff, rel. is also overruled State ex case supra. turn to in the
We now the statement Desehuttes Bridge authorizing change statute case that of apply transitory “it does not because actions brought said that the action has been can county.” wrong apparently The court construed the any county may proposition right become the county meaning county in which to file suit as that no county wrong which to file could be suit authorizing change that, therefore, the statute of venue fallacy. apply. plain transitory is a In a could not This any against person, right a natural is the to sue the defendant resides or one which or if he be a there, found and served nonresident of any clearly wrong But one in the state. person which to sue a natural if it is neither the residence, of defendant’s nor the one in which the defendant can be found at the commencement (unless state). the action he is a nonresident of the L. A. 1-403. In a later O. C. case, this court held transitory wrong that a action was “in the county.” State ex rel. v. Almeda Consol. Co., Mines supra. express provisions If so, then the of O. L. A. C. apply power § 1-404 and the court has under the condi- imposed change place tions statute to of trial. holding concerning change In that the statute apply venue does not actions, the dictum Bridge upon palpable in the Deschuttes case is based reasoning implications. error of which involves serious statutory provisions change If were no there any circumstances, venue under or at time, might implies inference be drawn that a defective venue jurisdiction. statutory a want of the other On hand, provision authorizing change of venue the motion party either would be consistent with the authorities right hold to have a of venue is *18 personal privilege is waived if not exercised. personal that think service
We of summons jurisdiction irrespective court with vests the appearance. general general appear It is true that jurisdiction sufficient of itself alone to ance is confer that it court, but the fact on the sufficient does not indispensable. prove If, that it is as we think, jurisdiction acquires filing and service, appear nature and time of the defendant’s then general, special only or affects ance, whether will of relief which be accorded him. character not mean that We do the court would be wrong: in the trv the case countv to authorized unless 390 express implied.
there or waiver, was as we But, object right shall to to show, erroneous venue is a privilege which, exercised, determine what the do, court should or should not but which does not affect jurisdiction In Matlock, its to act. Matlock Or. 307, 170 P. a husband for filed suit divorce in Lane county proceedings publication and commenced for by publication service summons, but before com was pleted, filed his wife suit divorce Multnomah got personal service and on the husband in Lane county. the Multnomah It was held that circuit court jurisdiction was because the Lane without circuit court acquired jurisdiction. first The case in had does not question but it venue, volve a shows subject acquired by matter over the the court even service. filed, where suit is before supra (24 v. Wadsworth, The case Johnston 13), appears support the view that authorizing change apply of venue to tran statutes sitory In and suits. that case the vendor actions specific performance brought for the of a con a suit brought purchase land. The suit was Mult tract county. lands were in but the Jackson nomah upon ground demurred the suit The defendant within which the land was was overruled. The The demurrer defend situated. answered, trial, a decree was entered ant appealed. plaintiff. The defendants The rele for the equity provided: of the code vant sections equity following cases shall “Suits subject tried in the where the commenced part is situate:— thereof, or some suit, of an claim, For determination adverse “3. property, specific in real or the interest estate, *19 agreement performance in relation of an thereto. * * *” (For § 387. this section as Code, Hill’s 9-108.) § L. A. see C. amended, O. provides same section shall
The actions county and tried in the he commenced which the may or defendants, them, or either reside be found at the if suit, commencement none of the any county state, defendants reside in the then in plaintiff may designate. provided Hill’s Code Section 388 of that the court change place of trial on the motion of either appears party it to the suit where from the affidavit party suit of such that the has not been commenced in proper county. This section, as amended, is now L. A. 9-110. The defendant O. C. contended that the court of Multnomah circuit had no specific performance of a to enforce contract in relation pro- to lands located Jackson because the distinguished ceeding transitory, was a as local, from a Plaintiff contended transitory. the action suit. Concerning contention, this the court said: “* * * sought by relief this suit is not price stipulated but title, to determine to recover the paid personam land.
to be for the The decree is in it rem, seem, and not and would therefore, when jurisdiction, parties are its within a court of equity may personam its make decree in for specific performance of a contract the sale county, notwithstanding land in another section plaintiff be, “However that wrong his suit the defendant waived objection availing under section 388 his him right proper self of the county. think, therefore, that it is We too late to objection after a this suit has been tried raise on its (Italics ours.) Johnston Wadsworth, merits.” 13). supra (24 34 P. *20 wholly meaning of the court is not clear, but we plaintiff hold that since the think it intended to vendor money judgment, only seeking a the was suit must be transitory. to be can find no other reason deemed We employment “notwithstanding words, of the for the ’’ opinion recognize to section 387. The seems that the authorizing applies of venue statute whether transitory, be local or that is “However that the suit * * maybe *.” Purdy, (107 Again, supra case of v. the Or. Schleef 137), contrary at least a 214 P. contains dictum to 71, ruling Bridge Deschuttes case. The court considering whether a suit for the cancellation of was mortgage local. In that connection, was § §L. 396 and court referred to Or. now O. C. equity § § which 9-110, 9-108and control venue in L. A. change of and authorize venue when the suit has suits wrong county. in the The court then commenced been portion approval to the have with we referred supra, quoted and Wadsworth, from said: Johnston that this decision is think decisive of the “We urged objection here, even this suit is a local one. legislative power prescribe to was within It affecting property to real title should be that suits county brought the land in the where was situated affecting provide where a suit land and to brought in where the land lies, but not any brought in the state, other Avas parties having suit, to the court, jurisdiction to hear and determine have should affecting the title to lands another matter objection power of the court was made unless objec direct that unless such answer, before the action was made, the court to which was so tion power brought, mat have to determine the should affecting lands so involved.” ters Schleef (107 80). Purdy, supra The court also said: necessary it is “But, not for us to decide whether mortgage acquire in this state does an adverse mortgaged premises claim in or to the within the meaning of term ‘adverse claim’ as used in however statute, for, be, while a local affecting property, suit, such as one real must be where land is situated, yet
as otherwise true venue is not laid, merely direction a contained Section Or. L. statutory declaration of the rule which existed independently where the statute, Section 397, L.,Or. proper- suit has been commenced in the *21 county of purpose and the motion is not made the delay, appear and these facts from the affidavit party of either to the suit, court, the on motion of * * *” party, change place such the trial. of supra Purdy, (107 79). (Italics 71, v. Or. Schleef ours.) The in law is well established that both transi tory subject actions and local actions in which the of general appear action within the is located the a state, try the ance defendant authorizes the court to upon though case the merits filed in wrong county. Concerning a action, the said: “* * * equally But rule is well settled right corporation a that of domestic to insist statutory exemption being its from sued in principal a that in other than which it has its place business, office or cause or the of action personal privilege arose, be waived, corporation wrong- and that in a when is sued immunity exemption from suit in that county such suit: voluntary appearance its is waived * * voluntarily
“By appearing in the suit the de- right corporation fendant waived its to insist that 394 proper had not been suit complete acquired juris- and diction full and the court person corporation of the defendant * * *” subject matter suit.
and supra v. Mines Co., State ex rel. Almeda Consol. (107 789). P. And Duncan 18, 22, 23, see, 212 Or. Willapa 182 Co., 386, Lumber 93 Or. Lumber Co. v. supra; P. Marx & Wadsworth, Johnston v. 172; Ferguson, supra; Byers Jorgenson v. Croisan, v. Lloyd, Templeton 41 P. P. v. 5; 65 68 77, 1067, Or. 115 P. ex rel. 1068; 109 P. State supra; Grallus, Norton, 12; 131Or. Greis supra; Hubner, Hubner v. v. Hanzlik, Hanzlik supra. Company case
In Mines the Almeda Consolidated generally, partic- only appeared but the defendant not ipated No was trial on the merits. issue years improper until four after raised as property under the cause the sale of trial of the receivership. certainly true that at some It must be right point had the in the ease have held venue or the court could not opinion therefore, is, there a waiver thereof. Bridge dictum the Deschuttes inconsistent with the case. applies local
A when the action is different rule *22 property is in another while in one state and suit is distinguished There county._ errone from as state jurisdictional general appearance and a venue is ous Mfg. & defect. Montesano Lumber does not waive As Works, Iron 78 Or. P. 244. v. Portland Co. venue and munic between interstate to ipal distinction p. Venue, 24, J., see 67 C. venue, or make valid as No court can order such change jurisdiction. venue it has for unless an order by by may acquired be either service Jurisdiction gexieral acquires jurisdiction appearance. A court when appears generally, though the defendant even no serv- attempted. ice was made or These cases which hold that by general appearance is a erroneous venue waived re- quire analysis. significance further Their does not may acquire lie fact obvious the court by general appearance. significance a The by implication, lies the fact that the defendant has, objection improper by waived to the venue failure to question raise the and has therefore authorized the try regardless court to case on the merits, proper Oregon error. Under construction of the acquires jurisdiction think statutes, we the court after although personal improperly service laid, only persoxial because the vexxue statute confers privilege by must which be exercised the defendant. thereby try not The court is authorized to the ease in wrong may privilege because it be that the by be exercised the defendant, will but the court has jurisdiction. In such a case the court does not need to rely general appearance upon jurisdiction, for al- though that alone would sufficient to confer it. appearance general The bears the waiver of ways privilege. There are at least two which a privelege. his First, exercise he quash move to and for dismissal. State ex rel. v. supra. Norton, If such motion if, is made and at the change no motion made, when time of venue is quash trial law, authorized court will the sum- and*dismiss the action. mons Under the statute, when objection try made, thus the court could wrong county. only judicial case conceivably be taken coxxld would be to change, party soxxght if neither has venue and such may properly disxniss. The dismissal would *23 jurisdiction, au- but for want of be for want of not try thority in the to the case under the venue statute proper wrong county of a motion authoriz- and for want ing change of venue. every general appearance waives the
But § L. A. a 1-405, C. erroneous venue. Under O. may appear change and then move for of and answer ground if motion is based venue, proper action was not commenced (1), 1-404, under L. A. subd. it would be O. C. change place duty of trial to the concerning county. proper The statute time within change venue in actions at law is move for which to follows: as change place a of trial “The motion for any action, until made, or allowed
can not only. question a of fact is at issue on after cause * * *” § 1-405. L. A. O. C. mo section, no the limitations of that Under plaintiff could be made or or defendant tion either question at on a of fact. allowed until the case is issue put on in an action at unless the case at issue law, So remedy only open question to a defendant fact, a quash perhaps, dismiss, motion to would be by Packing plea Co., in abatement. a Winter Union Willapa supra; Co., Lumber Duncan Lumber Co. venue). (a involving supra interstate It cer case is only right tainly which a defendant in clear that the right by general appearance is the waives law action statutory He still has a clear case dismissed. to have the right at of venue after the ease is to have on the facts. issue applies
A situation case of a different authority equity equity. code, Under suit filing differently as to the time the court limited ‘‘* * * *24 change change Such of venue. motion for the any not other- and answer, at time before be taken ” L. A. an O. C. like effect as in action. and with wise, party may (3). either statute, the subd. Under 9-110, change plaintiff, and a if he dis- of venue move for a wrong county, suit in the that has filed his covers he by change expressly a is authorized to secure statute of proof any venue clear at time answer. This is before jurisdiction, equity acquires the court notwith- standing brought wrong- the fact that the is in the suit upon plaintiff, change for motion of upon of venue could be made after service the defend him, regardless by appearance ant, or waiver acquisition per As to over the apply son, we think the same should rule to actions at equity, law and suits in without distinction. The court acquires jurisdiction upon personal service in either though improperly laid, ease the venue right change being only personal of venue privilege a (see Digest System, Key Am. 32). Venue, Nos. and case, But in if timely either the defendant makes a quash, motion to the motion should be allowed be although jurisdiction, cause, vested with the court by should controlled the venue statute, unless there timely quash waiver, a and when is motion to is made, there is no waiver. If there is no waiver and change by motion no authorized filed party, quash. either court must right far,
If we are then thus it follows that the acquired jurisdiction, case at bar even if wrong county, personal action was filed when had defendant. service was The defendant right quash then had the to file motion to sum- by supporting proof, mons and dismiss case, it wrong was, such there the action was county. thereby privilege He would have exerted by only way him accorded the venue statute in the which it could then be or the had exercised, right appear having put answer, question privilege case at issue on to exert his fact, by a motion for he of venue. When did neither, judgment against by but allowed to be taken him de- fault, he waived all of the methods which his privilege could and he have been exerted should permitted, years, now be after eleven to claim that the jurisdiction. court was without *25 appear, Upon failure to the issue waiver of very probably few. The reason is cases are merely an contest because intends to defendant quash files either a motion to he venue, of erroneous appeals change from are few of venue. There for a only judgments issue almost none when and default A few have considered venue. cases be is to raised concerning question. venue in divorce The statute provides for the of that “in suit dissolution cases marriage be commenced contract same any county in this state which either of in and tried §A. 9-108, L. subd. O. C. party suit resides.” to change concerning equity venue of (3). statutes The supra, In Hanzlik Hanzlik, cases. apply to divorce in Clackamas where filed was for divorce suit appeared parties resided. The neither of quash or for no motion to but made answered, objection to venue was first The venue. appeal. that suit had been court held on made wrong county, objection brought in the but court said: waived. The presented specific question for de- thus “The expressly been cision one which has not heretofore is due and in its determination court, decided this many given the fact that consideration must to granted in this state have been divorces heretofore parties resided
in neither where, cases because brought, the suit where suit was wrong and, had been validity ob- reliance thus decrees into, marital relations been tained, have entered marriages A determination void and that the all such now that are legitimacy of the children born of subject marriages question such to would be far reaching in its effect and disastrous in its con- sequences many persons.” innocent Hanzlik v. supra (110 98). Hanzlik, Or. 95, contemplation We think the court must have had many the fact cases have been wrong county, filed in the decree divorce had been personal appear- entered after service and for want of agree ance the defendant. We that if all such de- crees were now declared void, the results would opinion directly point, disastrous. The is not appeared, suggests the defendant in that case but it potent holding reason for that defendant waives improper by failing appear. ap- The court plied supra, the doctrine of Johnston v. Wadsworth, supra, Purdy, to divorce suits. Schleef *26 supra (130 629),
In v. Gallus, Geis this 619, by way went further and, court of dictum, said: by generally has been “It held the courts that in suit, if divorce is a resident by appear.” the venue state, is waived failure to 400 p. § 36; S., And 27 C. J. Divorce, 57, see, J., 19 C. p. 663. d., 83
Divorce, Ky. 41 768, 101 S. W. Tudor, In Tudor v. appear in an fails to the wife held that where against court has for divorce the her proof in the that resided she to hear the case without require brought as that the action when object by to the failure to of the is waived ment code jurisdiction. at Mobile v. Rut also Branch Bank See ledge v. 196; Wakefield, Ala. Watts, 13 Wakefield Ala. White, Ala. 685; So. White 517, 116 App. 288 Ill. Griffith, 579; 89 So. Wilson (2d) N. E. recognized generally the venue
It is merely provisions are for benefit in divorce suits parties. proceedings Divorce and convenience of transitory they closely actions than resemble do more affecting land. If a title to valid de actions local by although default, rendered can be of divorce cree wrong think the same rule we judgment transitory apply in a to a default also must Again, object waived failure to venue is action. affecting stronger to land, title there is actions in local applying the rule of'waiver to for reason merely rules of venue are enacted in which actions parties. convenience judge opinion of the trial contains an able points He out that of the issues. the state discussion Bridge Co., on v. Deschuttes in Brown de ment pure persuasively dictum and he relies, was fendant authorizing argues statute that the “just intended to meet such a have been situation must correctly presented case.” He this observes as is jurisdiction of circuit courts of this “the state
401 may process issue and summons Their is statewide.” affecting judgments and decrees any county; their to county, they any may after which be recorded land proceedings completely as as notice constitute county. § originally L. A. 9-108, O. C. in such had were to sheriff of (3). be issued Executions subd. any county counties at the or to different state, L. A. 6-1106. C. same time. O. that as have if, have held we conclusion,
In properly laid in Mult- the venue case, been the precedents, county, more recent statutes, the nomah reasoning of sum- establish service and the better county. validly in Lane had coidd mons improperly hand, the other venue was If, on county, hold that in Multnomah we the statute au laid applies thorizing to actions jurisdiction acquired the court this case. and that jurisdiction subject general matter of It had acquired personal upon such action upon county. him in service Lane defendant We jurisdiction, court has our that when the statutes hold §§ and 1-602, L. A. 1-601 service in a C. authorize O. than that in which the action other was filed. by failing appear to and claim hold that We privileges him venue statute, accorded objection if venue was, fact, waived defendant judgment against improperly Therefore, laid. valid. defendant judg- cases which indicate are some that the
There jurisdiction, general per- a court based on ment of Oregon, might au- service sonal presume that the defendant us resided in thorize 402
Multnomah or was a nonresident of the state properly Knapp venue was laid. v. and, therefore, Rep. 92 P. 126 Am. St. 1054, 742; 50 Or. Wallace, Murphy Bjelik, 87 P. 329,363, 169 520, 170 Or. 723; County, Capos Clatsop (2d) 25 P. justified A. L. R. But we do not feel *28 deciding the case that issue. judgment of the circuit court is affirmed.