189 Iowa 695 | Iowa | 1920
I. While the precedents dealing with cases of this kind
Under our statute, a defendant may make a special appearance to an action against him, for the sole purpose of attacking the jurisdiction of the court. Such special appearance must be announced at the time it is made. It limits the objection to the consideration of jurisdictional matters only, and gives him no right to plead to the merits of the case. Section 3541, Code Supplement,. 1913.
The defendant in this case unquestionably attempted to exercise this statutory privilege, and confessedly did make a showing of at least one sufficient ground of attack upon the court’s jurisdiction over his person. The attempted service upon him of the original notice was a clear violation of his right to immunity from such process. He met the attempt at the threshold, in the manner prescribed by the statute, by announcing that he appeared for the sole purpose of attacking the jurisdiction of the court. -Such being the declared intent and purpose of his appearance, the paper filed by Mm should be given interpretation and construction consistent therewith, if it can fairly be done. True, if, when so read, it pleads matter which, in fairness, must be deemed purely defensive, or as calling for the exercise of the court’s judicial authority to pass upon any question except its own jurisdiction,, then the fact that the paper is entitled a “Special Appearance,” instead of an answer or other pleading, is immaterial, and ordinarily the appearance will be treated as general. It seems to us quite clear, in the present case, that the defendant and his counsel made a good-faith attempt to confine the attention of the trial court' to the single question of jurisdiction. It may be that the allegation of the pendency of another suii involving the same subject-matter would, in an answer, amount to a plea in abatement; but it does not necessarily
“It was wholly unnecessary for the defendant to follow up its pleas to the jurisdiction of the coxirt by objecting to the subsequent proceedings on the ground that the court had no jurisdiction of the person of the defendant; but, since all of these objections are entirely consistent with appellant’s pleas to the jurisdiction, it is difficult to see how they can be held to amount to a waiver of the jurisdictional question.”
So, also, in Wisconsin it is held that, where defendant, specially appearing, asks no relief except such as is consistent with want of jurisdiction of the courts over the defendant, there is no waiver of the objection. Kingsley v.
In determining whether an appearance by a defendant is'general or special, the court will look to matters of substance, rather than matters of form. Rogers v. Penobscot Min. Co., 28 S. D. 72 (132 N. W. 792).
It will also have regard to the defendant’s apparent intent to make a special appearance,, if such intent is evident from the record. Crisp v. Gochnour, 34 S. D. 364 (148 N. W. 624); Thomson v. McMorran Mill. Co., 132 Mich. 591; Board of County Com. v. Smith, 25 Minn. 131; Woodard v. Milling Co., 142 N. C. 100; Moore v. Blake, 98 N. Y. Supp. 233.
Defendant sought no affirmative relief. He did not plead or offer to plead defensively to the plaintiff’s claim, but, on the contrary, carefully restricted his appearance, as required by the statute, to the sole purpose of denying the court’s jurisdiction. The trial court so treated the appearance, and based its ruling dismissing the case on the admitted fact of defendant’s nonresidence, and plaintiff’s failure to file his petition within the period fixed by the notice. For the reasons alreadjr suggested, we think there was no error in the ruling.
Nor is this conclusion to be avoided because the defendant asked that the action be dismissed. A few precedents may be found to the contrary effect, but the overruling weight of authority sustains our statement. The rule to which we-adhere is eminently just and reasonable, and is in clear accord with the provisions of the statute. See Milwaukee Elev. Co. v. Feucht-Wagner, 141 Wis. 266 (124 N. W. 264); Kingsley v. Great N. R. Co., 91 Wis. 380; Bierce v. Smith, 2 Abb. Pr. (N. Y.) 411; Hamburger v. Baker, 35 Hun (N. Y.) 455; Blackburn v. Sweet, 38 Wis. 578, 580; Jones v. Gould, (C. C. A.) 149 Fed. 153; Anderson v. Nawa, 25 Cal. App. 151 (143 Pac. 555); Flint v. Coffin, 176 Fed. 872 (100 C. C. A. 342) ; Franklyn v. Taylor H. A. C. Co., 68 N. J. L. 113; Austin Mfg. Co. v. Hunter, 16 Okla.
The foregoing cases are not all parallel with the one before us, in the facts considered or in the manner in which the questions passed upon have arisen; but, with many others which could be cited, they do sustantially agree upon the proposition that, so long as the defendant confines his special appearance to an attack upon the court’s jurisdiction over his person, and refrains from asking affirmative relief, which can be granted only on the theory of the existence of jurisdiction,, he will not be held to have waived the objection in support of which he comes into court. And surely, his persistent and consistent demand to be dismissed from a proceeding to which he has confessedly never been lawfully made a party, ought not to be denied without a showing of sound and cogent reasons therefor, — a situation which is not here presented.
■ The foregoing discussion upon this question whether a motion to dismiss because of want of jurisdiction over defendant’s person is tantamount to a general appearance, does not necessarily control the other question as to the effect of an appearance to move a dismissal for failure to filé the petition. That subject is considered in the next paragraph.
The statute as to the effect of a failure to file the petition in time provides that, if the petition be not filed within the period fixed by the notice, and ten days before the term, “defendant may have the action dismissed” (Code Section 3515); and it is a settled rule that an appearance by the defendant to demand a, dismissal on this ground will not operate as a waiver of the defect resulting from a failure to file the petition. Cibula, v. Pitt’s Sons’ Mfg. Co., 48 Iowa 528; Moffitt v. Chicago Chronicle Co., 107 Iowa 407, 413; Paddleford v. Cook, 74 Iowa 433; State v. Knapp, 178 Iowa 25.
It follows of necessity from the admitted facts that, even if we should hold with plaintiff that defendant did waive his right to immunity from suit in the courts of this state,, and did voluntarily submit himself to the jurisdiction of the trial court in this case, he did not waive his statutory right to have the action dismissed on Ms motion because of the failure to file the petition. He did make such motion, and the court did not err in sustaining it.