Richardson & Boynton Co. v. Utah Stove & Hardware Co.

77 P. 1 | Utah | 1904

McCARTY, J.,

after making the foregoing statement of the case, delivered the opinion of the court.

Appellant contends that the respondent corporation voluntarily appeared in the action instituted in the Illinois court, and thereby consented to the jurisdiction over its person, and that the findings and judgment of the trial court are’ erroneous and not supported by the evidence. Respondent, on the other hand, insists that the appearance in the Illinois court was a special or limited appearance, and made only for the purpose of filing the plea set out in the foregoing statement of the case, and was not such as, under the law and practice of this State, which is admitted to be the same as in the State of Illinois, can be construed to be a general appearance for the purpose of giving the court jurisdiction to proceed to try the case, and render a judgment. .Section 3334, Revised Statutes Utah 1898, provides as follows: “A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. ’ ’ Under the foregoing provisions ■of the statute, which are admitted to be the same as the' provisions of the Illinois statute, the question as to whether the appearance of respondent in the Illinois court was a general or special appearance depends somewhat upon the character of the paper filed by it in the Illinois court. At common law, when a defendant was sued by a wrong name, if he desired to taire advantage of the error, he could do so only by filing a plea in abatement. If he failed to so plead, he waived the Irregularity, and could not raise the question of misnomer in his plea to the merits; the rule being to dispose of all dilatory pleas before pleading to the merits. 1 Chitty, Plead., 440, 441. While there is no such pleading designated by our Code as a “plea in abatement,” yet the several defenses that were permitted to be raised by this plea- under the common-law practice still exist, and may be pleaded in the answer as new matter. Allison v. Railroad, 42 Iowa 274; Dutcher v. Dutcher, 39 Wis. 651; Plath v. Braunsdorff, 40 Wis. 107.

Pomeroy, in his work on Code Remedies, section 698, says: “Defenses still exist of the same essential nature as those which were formerly set up by means of a plea in abatement, and a judgment thereon in favor of defendant does not forever bar the plaintiff from the further prosecution of his demand. They are ■governed, however, by the same rules of procedure that regulate all the other defenses which may be relied upon by a defendant. There is. no difference in the methods of pleading them or trying them, or of adjudicating upon them. The only difference is in the respect to the conclusive effects of the judgments rendered upon them. In other words, so far as' concerns the manner of alleging and of trial, all. distinctions between these two classes of defenses have been abolished, and both have been placed in the same category.” Phillips on Code Pleading, at section 238, says: ' “ An answer in abatement sets np some matter of fact, the legal effect of which is to overthrow the pending action, without questioning the merits of the plaintiff’s demand. Among the defenses that may be pleaded in abatement are misnomer. ... As at common law a plea in abatement was required to give the plaintiff a better writ of declaration, so under the new system such answer must furnish information — such as the true name of defendant,, where misnomer is pleaded — that will enable the plaintiff to cure the defect by amendment, if it be a defect that can be so cured. ’ ’

Bliss on Code Pleading, section 345, says: “The Code requires the defendant either to demur or answer, and in, his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he elects to make must, be embraced within it. Matter in abatement is as much a defense to the pending action as matter in bar.” It will thus be observed that, whatever the pleading filed by the respondent in the Illinois court may be classed and denominated, it was in fact and in law an answer, and not a motion, as contended by respondent, and the filing of this answer constituted a general appearance.

Counsel for respondent have devoted much space in their brief to the discussion of the question of jurisdiction; claiming that the “defendant was not doing business in the State of Illinois, and hence not amenable to the process of its courts unless it voluntarily appeared in the action. ’ ’ As above stated, the appearance of defendant was, under the statute, a general appearance, and the court acquired jurisdiction of its person. And further the respondent did not appear in the Illinois court for the purpose of raising the question of jurisdiction, nor did it at any time assail the jurisdiction of that court until after the bringing of this action. It is admitted that, at the time the action in the Illinois court was commenced, P. W. Madsen; as president and business manager of respondent company, was in the city of Chicago, State of Illinois, on business for and on behalf of respondent, and while there, as shown by the record, he was served- with the summons referred to in the foregoing statement of the case. The defendant, in answer to the summons, appeared in court and filed the plea hereinbefore referred to, and which, it will be observed, in no way raised or challenged the jurisdiction of the court, hut merely asserted that respondent had been sued by the wrong name. The plaintiff admitted the error, and asked that the record be amended, and that the suit proceed against defendant company in its true name, which the court permitted to be done. The respondent, having thus submitted itself to the jurisdiction of the court, cannot now by a collateral attack he permitted to successfully assail the judgment therein rendered. 1 Black on Judgments (2 Ed.), 245, 246, and cases cited.

We are of the opinion that the judgment rendered against respondent in the Illinois court is a valid and binding judgment, and that 'the ninth finding of the trial court herein is erroneous and not supported by'the evidence. The judgment-is therefore reversed, with directions to said court to proceed in accordance with the views herein expressed; costs of this appeal to he taxed against respondent.

BASKIN, C. J., and BABTCH, J., concur.