120 P. 737 | Or. | 1912
Lead Opinion
Opinion by
The summons was served on August 4, 1910. The return of service was indorsed thereon in the following language:
“State of Oregon, County of Clatsop- — -ss.
I hereby certify that on the 4th of August, 1910, at Astoria, Clatsop county, State of Oregon, I served the within summons on the within-named defendant, O. W. Hurd, by delivering a true and correct copy thereof, prepared and certified to by me as sheriff of said county, Oregon, together with a copy of the complaint, certified to by G. C. Fulton, one of the attorneys for plaintiff, to O. W. Hurd personally and in person.
M. R. Pomeroy, Sheriff.
J. J. Leonard, Deputy.”
“It is hereby stipulated and agreed, by and between the attorneys for the respective parties, C. W. & G. C. Fulton for plaintiffs, and A. W. Norblad for defendant, that said defendant shall have ten days from the date hereof ^within which to plead answer or demur or make such motion as he shall see fit in the said cause; it being' understood that this stipulation is not considered in any wise a general appearance of said defendant.
[Signed by the attorneys.]”
On August 20, 1910, defendant filed a motion to quash the service of summons. The motion was denied on September 13, 1910, and defendant refused to plead further. Judgment was render against the defendant as prayed for in the complaint, and defendant appeals.
Two questions are raised on this appeal: (1) Can the motion to quash the service of summons be heard on affidavit in this court, in the absence of a bill of exception? (2) Does the stipulation filed constitute a voluntary appearance?
Defendant, on August 20, 1910, ’ filed in the case a notice that on August 31st he would move to quash the service of summons, which notice was accompanied by a motion, stating that he appeared specially for the purpose of the motion, and for no other purpose, based upon an affidavit of O. W. Hurd, together with the copy of summons and complaint as exhibits, namely:
“Moves the court to quash, annul, and set aside the service of summons and service of copy of complaint in said action or pretended service of summons and copy of complaint herein, for the reason that the said copy of complaint was not prepared and certified to by the plaintiffs, their agent or attorney, or by the county clerk, in compliance with Section 55 of Bellinger & Cotton’s Annotated Codes and Statutes of Oregon.”
The judgment is affirmed. AFFIRMED.
Decided March 5, 1912.
Rehearing
On Petition for Rehearing.
Opinion by
In deciding this case we considered that if defendant’s position were sustained as to the special appearance,, yet as the record showed a complete service of the summons and therefore jurisdiction of the defendant the other question was immaterial.
By this motion defendant urges that, as the sufficiency of the service of summons was not passed upon by the lower court, he is entitled to have determined the question whether his appearance was general.
“That where the defendant appears and asks some relief which can only be granted on the hypothesis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance, by its terms, be limited to a special purpose or not.”-
This language, as well as the authorities cited under note 3, are taken literally from Belknap v. Charlton. In that note on page 625 it is said:
“The reason that under such circumstances a special appearance is converted into a general one is, that otherwise the defendant would be given this advantage; after objecting that he was not properly in court, he could go in, take his chance of a trial on the merits, and, if it resulted in his favor, insist upon the judgment as good for his benefit; but if it resulted against him he could set it all aside upon the ground that he had never been properly got into court at all. If a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection,” citing Lowe v. Stringham, 14 Wis. 242.
In Multnomah Lumber Co. v. Weston Basket Co., 54
The motion is denied and the judgment affirmed.
Affirmed: Rehearing Denied.