86 P. 865 | Utah | 1906
Lead Opinion
In the complaint filed in the district court of Salt Lake county it was alleged that the defendant was a corporation organized under the laws of this state; that it had its principal place of business and residence in Salt Lake county;' and
“Does not change the common-law practice in respect to venue either in civil or criminal actions, hut is simply an announcement of the common law upon that subject.”
And that transitory actions
“Could he instituted in any jurisdiction in which the defendant was served with process, on the principle that as soon as a person becomes liable in such action to another, either by reason of a tort or contract, the liability attaches to the person and follows him wherever he goes.’ ”
The holding of these cases is that the constitutional provision does not confer nor restrict jurisdiction, but that the jurisdiction of the district court is as prescribed and defined by section 7, art. 8, of the Constitution, which provides that:
“The district court shall have original jurisdiction in all matters civil and criminal not excepted in this Constitution, and not prohibited by law.”
Under these decisions the court had jurisdiction of the subject-matter of the action. To hold with the court below in sustaining the demurrer on the ground of a want of such jurisdiction, and to re-establish the rule announced in the Kon-old Case, requires the overruling of all the later cases. We have no disposition to depart from the conclusions reached in these cases. The question has been before this court, and engaged its attention during the last ten years, in a dozen or more cases, in which diverse learned opinions have been expressed upon it. The necessity for stability and uniformity in the construction and interpretation of the law requires that the doctrine of stars decisis be applied. Keopening the question at every change in the personnel of the court is fraught with uncertainty and vacillation. We therefore adhere to and reaffirm the rule announced, that the court had jurisdiction of the subject-mattei*.
“Where the court in which an action is instituted has jurisdiction of the subject-matter, the lack of jurisdiction on other grounds must, under the Code of Civil Procedure, be raised by demurrer or answer or the right to object to the jurisdiction on other grounds is waived by the defendant,”
and inasmuch as each of the defendants there entered a general appearance1, by a plea to the merits, he was precluded from raising the question. The effect of these decisions is, not that the court had no jurisdiction of the person in the first instance, and only acquired jurisdiction from a general appearance, but that the defendant’s right to raise such a question was waived. It having been determined that the lower court had acquired such jurisdiction from an appearance and a plea to.the merits, it was, therefore, wholly unnecessary and immaterial to determine whether the court also acquired such jurisdiction in some other manner. Here, a timely attempt was made to raise the question, but we fail to find anything on the face of the complaint tending to show that the defendant was not subject to the process and jurisdiction of the court.
“Jurisdiction of the person is ordinarily understood to- mean the power, obtained by the service of a summons or other proper notice or by an appearance, to render a personal judgment.” (17 Am. & Eng. Ency. Law, 1060.)
Courts having jurisdiction of the subject-matter
“Obtain jurisdiction over the parties by the plaintiff appearing and invoking their aid, and over the defendant by his being brought before*120 them, either by voluntary appearance or by process served.” (Brown on Jurisdiction [2d Ed.], section 44; Works on Courts, and Their Jurisdiction, section 13.)-
“The meaning of the clause ‘that.the court has no jurisdiction of the person’ is, that the person is not subject to the jurisdiction of the court, and not that the suit has not been regularly commenced.” (Estee’s Heading [4th Ed.], section 3081; Bliss, Code Pleading [2d Ed.], section 405.)
“That ground of demurrer raises only the question whether the defendants are such persons as can be subjected to the process and jurisdiction of the court.” (Belden v. Wilkinson, 44 App. Div. 421, 60 N. Y. Supp. 1083.)
The statute (section 2940, Rev. St. 1898) provides that the summons, together with a copy of the complaint may be served “where the defendant may be found.” The court having jurisdiction of the subject-matter, and the complaint showing a mere transitory action against the defendant residing in. the county where the suit was commenced, we fail to find anything on the face of the complaint to justify a holding that the defendant was not subject to the process and jurisdiction of the court. But it is urged that, by reason of the constitutional provision, the court acquired no such jurisdiction, and that the defendant had the right to* insist, under its demurrer, that the cause should be tried in Carbon county, where, it is also claimed, it should have been commenced. If the court had jurisdiction of the subject-matter, and if it shall be assumed, as is argued, that the word “business” in the Constitution is synonymous with and means “causes of action,” and that the defendant had the right to* insist that the cause of action be “tried” in the county where it arose, then, it would seem, a demurrer on the ground of want of jurisdiction of the person would not reach the question, but that a motion to transfer the cause to the proper county would be the appropriate remedy. It may, however, be said that since the repeal of section 2933 and subdivision 1 of section 2934 of the Revised Statutes of 1898, there no longer exists any statute giving a right to. a change of venue on the ground that the action was commenced not in the proper county for trial. But if the Constitution, as is claimed, gives a defendant the light to insist that a cause of action shall be tried in the county where
In view, however, of the conclusions reached and of the rulings made in the later cases and of the interpretation there given the constitutional provision, a defendanthasnot the right because of such provision,to insist that theaction shall be commenced or tried in the county where the acts, which gave rise to the cause of action, occurred. After this court, in effect, held that the constitutional provision does not grant nor limit jurisdiction, and is but declaratory of the common-law’with respect to venue, and' that transitory actions could be instituted in any jurisdiction where the defendant may be found and served with process, we no longer see any basis for the contention that a defendant, in such an action, has the right to insist that it must be commenced or tried in the county where it arose..Furthermore, the interpretation urged that the word “business” is synonymous with* and means “cause of action,” is, we think, a misconception of the intended meaning of section 5, art. 8, of the Constitution.- The entire section reads as follows:
“The state shall be divided into seven, judicial districts, for each of which, at least one, and not exceeding three judges, shall be chosen by the qualified electors thereof. The term of office of the district judges shall be four years. Except that the district judges elected at the first election shall serve until the first Monday in January, A. D. 1901, and until their successors shall have qualified. Until otherwise provided by law, a district court at the county seat of each county shall be held at least four times a year. All civil and criminal business arising in any county, must be tried in such county, unless a change of venue be taken, in such cases as provided by law. Each judge of a district court shall be at least twenty-five years of age, a member of the bar, learned*122 in the law, a resident of the territory or state of Utah three years next preceding his election, and shall reside in the district for which he shall be elected. Any district judge may hold a district court in any county at the request of the judge of the district, and upon request of the Governor, it shall be his duty to do so. Any cause in the district court may be tried by a judge pro tempore, who must be a member of the bar, sworn to try the cause, and agreed upon by the parties, or their attorneys of record.”
When the word “business,” in the particular clause where it is found, is read in connection with what precedes it, “a district court at the county seat of each county shall be held at least four times a year,” it is apparent that it was used in the ordinary sense as defined by Webster, “that which one has to do or should do; special service, duty or mission; that which engages the time, attention or labor of any one.” That is to say, a district judge going to a county to hold court shall there try or dispose of all matters and proceedings, both civil and criminal, which have there been brought into existence for trial or disposition, unless a change of venue be taken as by law provided; there to do that which is required of the court to be done or that it should do, and which has there arisen to engage its time and attention. The section provides that, not only shall a district court be held in each county, but, also, that all civil and criminal business arising in the county shall be tried in such county; that is, whatever civil or criminal business has there arisen for trial or disposition shall there be tried or disposed of. In Brief, the court shall transact the business of the court in the county where the business exists. Such meaning is made clear by reading the proceedings of the constitutional convention relating to the section in question. While we have somewhat doubted the propriety of resorting to the proceedings in aid of a construction and interpretation of a constitutional provision, since the Constitution does not derive its force from the convention which framed it, but from the people who ratified it, and that the intent to be arrived, at is that of the people who adopted the Constitution rather than those who framed it, yet we find ample authority and well-established precedents justifying courts in examining the proceedings in order to determine the
“When the inquiry is directed, to ascertaining the mischief designed to be remedied, or the purpose sought to he accomplished by a particular provision, it may he proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision the aid will be valuable and satisfactory; hut where the question is one of abstract meaning, it will he difficult to ■ derive from this source much reliable assistance in interpretation.”
TJpon an examination of the proceedings here, the purpose sought to be accomplished by the particular clause in the Constitution in question is'elearly disclosed. On page 1503 of the official reports of the proceedings, the following, appears: “Mr. Evans (Weber). I desire to offer the following amendment to section 5, after the word year: ‘All civil and criminal business arising in any county must be tried in such, county, unless a change of venue be taken in such cases as may be provided by law, or upon consent of the parties, in writing, in civil cases.’ Mr. Varian. What is the necessity for that ? Mr. Evans (Weber). I think the article by implication now would require that all the business should be transacted in the county where it arises. My only purpose was to make it certain that all the business should be tried in the county where it arises, and I want to add this with the qualification there of cases where a change of venue might be taken as provided by law. There may be some criminal case where all the jurors in the county are prejudiced and it would be necessary to remove it to another county, and then in civil cases, if parties want to stipulate it into another county, they can do so. Mr. Varian. Won’t that amendment cut out the general proposition for a change of venue in civil cases, whether the parties stipulate or not ? Mr. Evans (Weber). I think not. Mr. Varian. It seems so to me; that is purely a matter of legis
Viewing the section as it was before the insertion of the amendment, it is manifest that the convention was not thereby dealing with nor having under consideration the subject-matter of granting or limiting jusisdiction of courts, nor as to prescribing or defining the loci of actions. Erom what is made to appear by the proceedings of the convention, when the amendment was proposed it is also> evident that the amendment did not pertain to such subjects, nor did it in anywise relate thereto. To say that it did pertain thereto is to say that it was not germane to any subject in the section which was sought to be amended by it. Giving the word “business” and the clause wherein it is found the meaning-which we have given it, makes it germane to the subject-matter of the section, especially to the clause or sentence preceding the one wherein it is found, and also makes the inquiry of Mr. Varian, when the amendment was proposed, very pertinent. That is to say, what is the necessity of a provision requiring the court to transact the business of the court in a county where the business to be transacted exists ? And, too-, it makes the reply of Mr. Evans to the inquiry very appropriate, when he said: “I think the article, by implication, now [that is, without the amendment] would require that all the business should be transacted in the county where it arises” (where it was brought into being or notice for transaction; there to be tried)', and shows, as was stated by him, that his only purpose, by the amendment, was to make such fact certain. No one has yet contended, and no one can successfully contend, that, without the amendment, there is anything in the article which, even by implication, gives actions the characteristic of a locus, and requires transitory, or even local actions, to be commenced or tried in the county where the acts giving rise to the cause of action occurred, or that there is anything in the article which even squints at such a principle,
The- judgment of the court below is reversed, the court directed to reinstate the case, and to overrule the demurrer, and
Dissenting Opinion
I dissent, and for an expression of my views on the points-discussed in the opinion of the majority herein, refer to my opinion in the case of Gibbs v. Gibbs, 26 Utah 398-433, 73 Pac. 641.