State Ex Rel. Westlake v. District Court of First Judicial District

167 P.2d 588 | Mont. | 1946

Lead Opinion

The police power of the state may be invoked by the state to protect the dairy industry in Montana, and such protection is a wholly legitimate exercise of that power. The police power of the state embraces regulations designed to promote the public convenience or the general prosperity or the public welfare, including the encouragement of industry in the state, as well as those designed to promote the public safety or the public health. (Eubank v. Richmond, 226 U.S. 137, 57 Law. Ed. 156; Sligh v. Kirkwood, 237 U.S. 52, 59 Law. Ed. 835; C.B. Q.R. Co. v. Illinois, 200 U.S. 561, 50 Law. Ed. 596; Lake Shore M.S.R. Co. v. Ohio, 173 U.S. 285, 43 Law. Ed. 702; Atlantic Coast Line v. Coachman, 59 Fla. 130, 52 So. 377; Hawthorn v. People, 109 Ill. 302, 50 Am. Rep. 610; Clinstman v. Northrop, 8 Cow. 46; Freund, Police Power, sec. 276.)

It is enough under the declaratory judgments Act that the interveners have a "protectible interest" — the archaic "cause of action" not being necessary. Nor is a cause of action necessary where intervenors unit with the defense as intervention to assist, or in aid of, defendant, is a recognized right, i.e. one of the grounds of intervention under section 9088. (20 Cal. Jur., sec. 22, pp. 515-516; Borchard on Declaratory Judgments, p. 48 et seq.)

Relators as intervenors in the court below are members of the public consuming dairy products, including oleomargarine, the base of which is milk, or may be milk. As consumers they depend for their protection on Chapter 93, Laws of 1929, of which section 2620.45 is a part. That section supplies funds (the oleo license tax among other license taxes) for the statutory inspection and police services in direct protection of their personal, bodily health, and to fair dealing in the food markets of the state, as those rights may be affected by the marketing of food products. They have fully as much interest in sustaining that protection as a taxpayer who may have to pay 3c under an invalid levy, (Pioneer Motors, Inc. v. Ford et al., and cases cited in the brief for plaintiff therein) or a citizen called upon to furnish burdensome reports (Germantown Trust v. Powell,260 Pa. 181, 103 A. 596) or to protect a corporation in which he is only a stockholder but which does not protect itself (Motor Transit Co. v. Commission, 15 F. Supp. 630, 632; Davis v. B. M.R. Co., 89 F.2d 308, reversing 17 F. Supp. 97; Helvering v. Davis, 301 U.S. 619, 81 Law. Ed. 1307 [Here the citizens corporation, the State, is not defending itself on the ground the statute is valid under the police power.]). A showing of pecuniary damage is not essential at all. (Wallace v. Currin,9 F.2d 856, 306 U.S. 1, 83 L.Ed. 441; Harris v. Monrose B. L. Ass'n, 185 La. 289, 154 So. 503, 169 So. 343.)

The effort in the court below to oust the intervention was by a motion to strike and by a demurrer, both of which spoke to the whole complaint in intervention, and thus challenged its sufficiency inclusive of all averments as they stand, admitting all thereof for purposes of determination. Both the motion and the demurrer inferentially confess that relators have an interest, but insist that it is represented by the defendants, which raises at once the basic question of whether it is. In essence the motion and demurrer constitute a general demurrer. (Paramount Publix Corp. v. Boucher, 93 Mont. 340, 19 P.2d 233.)

The order granting intervention determined the sufficiency of the interest. (Townsend v. Driver, 5 Cal. 581, 90 P. 1071; Rodehaver v. Mankel, 16 Cal.App.2d 597, 61 P.2d 61.)

The defendants do not object to the intervention.

Plaintiff really recognizes the interest of intervenors as sufficient when he says that their interest is represented by defendants. But that begs the question.

The court was clearly right in permitting the intervention to prevent abortive adjudication.

Brackman does not make the attorney general or the county attorney a party defendant, notwithstanding they are the officers upon whom, ultimately the enforcement of the statute depends.

Brackman alleges that while oleomargarine is not in all respects a substitute for butter, it is "nutritious, wholesome, healthful food."

The defendants admit this allegation. (The intervenors deny this allegation.)

Brackman asserts that the statute was "passed in the exercise of the public power." The defendants deny this allegation. (Intervenors assert the statute was passed in the exercise of the police power.)

Can plaintiff and defendants bind this court by such pleadings to shut its eyes to the essential qualities of a commodity used for food? Were it not for intervenors, the court would either be forced to accept that result, or order, sua sponte, the making of issues which would present a real controversy.

If the statute can be sustained as both an exercise of the tax power and the police power (or either), it should not be foreclosed from that inquiry. It makes no difference that there is no collusion between plaintiff and defendants. Their pleadings leave the case where the court cannot afford to take a chance on a partial adjudication.

As said by Borchard in his work on Declaratory Judgments, at page 768:

"In passing upon statutes, the Supreme Court, like other courts, may construe or interpret the statute or Constitution from internal evidence of its meaning (in some factual setting) or may apply the statute or Constitution to a varied combination of external facts. This second function, perhaps the more frequently exercised, involves the application to complex facts of such concepts or standards as due process, equal protection, interstate commerce, reasonable, etc., and necessarily presupposes a full presentation of the facts, the adequate appreciation of which is the main element in the case. `In every such case the decision, in the first instance, is dependent upon the determination of what in legal parlance is called a fact, as distinguished from the declaration of a rule of law.'"

Is the legislative effort to be left to the mercies of an attacker who claims it is an exercise of the police power and a defender who not only offers no pleading of facts to justify the exertion, but confines justification to the taxing head, notwithstanding the setting of section 2620.45 as part of Chapter 93, Laws of 1929.

In Montana, it is the public interest shared by the individual, which is the very basis of the right to be represented in public matters. And no more salutary rule exists anywhere. (Freeholders of Hudson County, 105 N.J.L. 57,143 A. 536; Robinson v. Moser, 203 Ind. 66, 179 N.E. 270.)

The intervention is squarely within section 9088. The right to intervene is not limited to any particular kind or class of actions, but is general. (Robinson v. Crescent City Co., 93 Cal. 316,28 P. 950; State v. N.P. Ry. Co., 88 Mont. 529,295 P. 257; Burgess v. Hooks, 103 Mont. 245, 62 P.2d 228.)

The fact that one has a legal interest in the success of defendant, or an identical interest, is one of the very grounds of intervention. (Sec. 9088, Rev. Codes.)

So, too, the fact that one comes in to assist one of the parties, (Young v. Colyear, 54 Cal.App. 232, 201 P. 623; 20 Cal. Jur., sec. 22, pp. 515-516) and is "commonly and generally" interested. (33 Cal.App.2d 48, 90 P.2d 858.)

The fact that an intervenor may or may not protect his interest in some other way, is immaterial provided there exists the statutory "interest in the matter in litigation or in the success of either of the parties. (Dennis v. Kolm, 131 Cal. 91,63 P. 141; Bogue v. Roeth, 98 Cal.App. 257, 276 P. 1071; Elms v. Elms, 4 Cal.2d 681, 52 P.2d 681,52 P.2d 223.)

Here, if Brackman succeeds he not only restrains the defendants from collecting a license from him; he stops the defendants from collecting any license from anybody. The judgment in the case would wipe out licensing and deprive intervenors of every police activity dependent upon it. The complaint in intervention should not be allowed for the reason that none of the plaintiffs have a direct or immediate interest in the matter in litigation or in the success of either of the parties, or an interest against both.

The purpose of intervention is to prevent multiplicity of suits and intervention is purely statutory. (20 Cal. Jur., Paragraph 26, page 52; sec. 9088, Rev. Codes, 1935.)

It is evident from the allegations set forth in paragraph 7 in the complaint in intervention filed herein, that the only interest that the intervening plaintiffs have alleged, which is not in common with any other citizen, is that if this section is declared unconstitutional, it will "deprive plaintiff and all other persons, firms, corporations and associations, for whom this intervention is made, of the protection extended to the dairy industry in Montana by such licensing system." Counsel for respondents contends that this does not set forth a legal interest as contemplated by the statute, for the reason that the plaintiffs in intervention have no legal right under the Constitution to the protection claimed in the manner set forth, as both the Federal and State Constitution prohibit the levying of taxes for private purposes.

"Taxes shall be levied and collected by a given law and for public purposes only * * *" (Sec. 11, Article 12.)

"Neither state nor any county, city, town, or municipality, or any subdivision of the state shall give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual association or corporation." (Sec. 1, Article 13.)

In the case of Stanley v. Jeffreys, 86 Mont. 114, our Supreme Court said: "Section 1 of Article 13 of the Constitution was intended to prevent the extension of public aid to private enterprise or that of a semi-public nature, yet having for its purpose gain to the individual, association or incorporation building it up."

And as said in the case of National Bank of Cleveland v. City of Iola, 9 Kan. 689, "A preservation of the interests of individuals either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is in its exact character a private and not a public object."

The question presented by the petition for writ of supervisory control is whether the parties seeking to intervene have a direct and immediate interest in the matter in litigation or in the success of either of the parties such as contemplated by section 9088, R.C.M. 1935; and unless the interests of the petitioners in intervention is direct and immediate, such a petition should be denied.

"A party seeking to intervene in a particular action should make it appear that he would have been at least a proper party to the action when it was commenced, and would have been entitled to the relief he seeks in a separate action in the same court against the parties from whom he seeks relief." (Price v. Hansen (Utah), 206 P. 272.

Both the statutes of the states of California and Colorado granting a right of intervention are identical with the Montana statute and the courts of those states have consistently followed the rule that the right of intervention must be founded upon a direct and immediate interest in the matter in litigation.

Petitioners in intervention are already represented. "Ordinarily it seems, a person whose interests are already represented will not be permitted to intervene. However, intervention by such persons has been permitted where there is collusion between the original parties." 47 C.J., paragraph 198,

Section 3555 R.C.M. 1935 provides as follows: "Department of agriculture, labor, and industry — creation. There is hereby created a department of the government of the state of Montana to be known as the `department of agriculture, labor, and industry.' The general purpose of said department is the promotion of the agricultural and labor interests of the state of Montana as hereafter more specifically provided."

And section 2620.1 R.C.M. 1935 further provides, "Regulation of dairy industry. The department of agriculture, labor and industry of the state of Montana, through its division of farming and dairying, shall have the general regulation of the industry of dairying in this state, including the regulation and sanitary inspection of all creameries, butter and cheese factories, milk or cream receiving stations, and ice cream factories. The sanitary inspection of dairies, milk plants, condensed milk factories and powdered milk factories shall be administered by the state livestock sanitary board."

Since both the commissioner of agriculture and the dairy commissioner are the parties defendant in this action, it is plaintiff's contention that they are more nearly representative of the interests in the subject matter of the litigation and the interest claimed in the petition of intervention than any of the plaintiffs named in said petition and since these defendants are the duly appointed state officers whose particular duty it is to look after the dairy and agricultural interests of the state and represent all of the citizens of the state, it is hard to conceive how the interests of plaintiffs in intervention, if any, could be better represented than by these state officers appointed for that very purpose. Relators seek a writ requiring respondents district court and judge thereof to set aside an order striking plaintiff's complaint in intervention from the files in the action entitled O.L. Brackman, Plaintiff v. Albert H. Kruse, Commissioner of Agriculture of the State of Montana, and Thomas E. McMasters, Dairy Commissioner, Defendants.

That action was brought for a declaratory judgment determining that the imposition of license fees on sellers of oleomargarine by section 2620.45, Revised Codes, is unconstitutional and void.

The relators' petition to intervene was accompanied by their tendered complaint in intervention; an order was made ex parte permitting the intervention and directing the filing and service of the complaint in intervention, which included an answer to plaintiff's complaint, the interveners joining with the defendants in resisting plaintiff's contentions. On the following day the plaintiff filed both a motion to strike the complaint in intervention and a demurrer to that complaint. His motion was thereafter granted by the trial court on the ground "that the interest of the interveners is not the direct and immediate interest in the matter in litigation contemplated by section 9088, Revised Codes of 1935, and further that interveners' interests are already adequately represented by the original defendants." In other words, the court's conclusion was that the relators were not properly entitled to be heard as parties to the action, whatever the merits of their tendered complaint in intervention might be.

For reasons stated below, it is unnecessary to discuss the allegations of the complaint, the answer, the petition for leave to intervene, and the complaint in intervention.

This court said in State ex rel. Thelen v. District Court,93 Mont. 149, 17 P.2d 57, 59: "By section 9088 it is provided that `an intervention * * * is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared.' This statute contemplates that two things must occur in accomplishing an intervention. The first is that there shall be filed a petition asking leave to intervene. If leave be granted, the complaint must then be filed. The first can be filed as matter of course; the second only upon leave of court. The better practice is to serve a copy of the complaint in intervention with the petition asking leave to intervene, and if leave is granted, the complaint should be filed forthwith.

"We think, however, that petitioner should not have been denied the right to intervene for failure to tender a complaint in this case. The petition asking leave to intervene stated facts sufficient to show petitioner's interest in the property, and showed the grounds upon which the intervention rests. It gave the adverse party as much information in that regard as could a complaint filed upon leave of court."

In other words, while it is regarded as the best practice to[1] serve and tender the proposed complaint in intervention along with the application for permission to intervene, and if so served and tendered the complaint in intervention may be considered with the application upon the issue of the right to intervene, it is no necessary part of that application, its chief mission being as a pleading in the main action, after intervention granted.

An order permitting intervention may be vacated on motion[2-5] where permission to intervene should not have been granted. 47 C.J. 114, sec. 218. This is particularly true under statutes like ours, which permit the allowance of intervention without the requirement of a prior hearing upon notice to the litigants; for no other remedy is available. Manifestly, however, a motion directed against the petition and order of intervention is something quite different from a motion or demurrer directed against the complaint in intervention itself; for the first attacks the propriety of the existence of the complaint in intervention and of its consideration by the court, while the second regards it as before the court as a pleading in the main cause and attacks its sufficiency as such. That they are entirely separate matters is manifested by this court's holding, in Burgess v. Hooks, 103 Mont. 245, 62 P.2d 228, 229, that "the order granting leave to intervene is, of course, without prejudice to any objection that may be made to the sufficiency of the pleading filed under the order." It is also made clear by the holding in the same case that "after intervention, the intervener's rights are as broad as those of the other parties to the action" and the holding in State Bank of New Salem v. Schultze, 63 Mont. 410, 209 P. 599, 603, that "from a reading of the statute, it was clearly the legislative intent that the ordinary rules of pleading shall apply to a complaint in intervention; for, after making provisions for the service thereof, it requires that parties to the original action may answer or demur to the intervener's complaint as if it were an original complaint."

By plaintiff's motion he questioned the relators' right to intervene and thus the court's jurisdiction to hear them as interveners, but by his demurrer to the complaint in intervention he must be held to have assented to that jurisdiction by tendering to the court the issue of law whether that pleading stated facts sufficient to constitute a cause of action.

In State ex rel. Bingham v. District Court, 80 Mont. 97,257 P. 1014, 1015, the relator sought a writ of supervisory control to compel the District Court, in an action in which she was a defendant, to grant her motion to strike an amended and supplemental complaint from the files upon the ground that it had been filed without valid order of court. Her petition showed that at the time of serving and filing her motion to strike that pleading she served and filed also a demurrer to it.

This court unanimously held that the objection raised by her motion "challenges the jurisdiction of the court over the person of the defendant, may be waived, and is saved only by appearing specially for the purpose of urging it. Schilling v. Reagan,19 Mont. 508, 48 P. 1109; Hinderager v. MacGinniss, 61 Mont. 312,202 P. 200"; that the filing of her motion "constituted a special appearance only and extended the time for making her appearance on the merits until the motion was determined (section 9322, Rev. Codes 1921; Missoula Belt Line Ry. Co. v. Smith, 58 Mont. 432, 193 P. 529), and having so appeared, counsel was required to do nothing further until the court ruled upon his motion except to `keep out of court for all other purposes' (Hinderager v. MacGinniss, above; Gravelin v. Porier,77 Mont. 260, 250 P. 823)"; that "the filing of a demurrer constitutes a general appearance, vesting the court with jurisdiction over the person of the demurrant (McKierman v. King,2 Mont. 72; Butte Butchering Co. v. Clarke, 19 Mont. 306,48 P. 303) and operates as a waiver of the objection to such jurisdiction (Sanders v. Farwell, 1 Mont. 599; Collier v. Erwin,3 Mont. 142; Smith v. Franklin Fire Ins. Co., 61 Mont. 441,202 P. 751; Hinderager v. MacGinniss, above)"; that "when counsel appeared generally for his client, though he was not required at the time to do so, he waived her objection to any defects in the pleading attackable only by motion (31 Cyc. 725), in spite of the fact that he filed her notice of motion at the same time."

In that case an attempt had been made to preserve the effect[6] of the special appearance by the statement in the demurrer that the right to rely upon defendant's motion to strike was expressly reserved, thus demonstrating that there was no intent to waive the motion; but this court said: "It may be that, to say that a party `waives' such objections by any act constituting a general appearance is not a technically accurate statement, as a `waiver' is `the intentional relinquishment of a known right' (27 R.C.L. 904), and to constitute a waiver of a right there must have been an intention to waive (In re Estate of Nix, 66 Mont. 559,213 P. 1089), but the statutes and the authorities declare that by taking certain action in a cause a party is `deemed' to have waived, not the right to object to defects in pleadings or service, but the defects; it might be more accurate to say that the party is, by this act, barred from thereafter raising an objection to such defects, but the result is the same and the law on the question is well settled. The law declares that, by his act, a party is `deemed' to have waived the defects and the so-called waiver depends, not on the intention of the party, but upon his actions. Thus in State ex rel. Mackey v. District Court, 40 Mont. 359, 106 P. 1098, 135 Am. St. Rep. 622, it was held that where an attorney appeared specially for the purpose of making a motion akin to that in the case at bar, stating that he was authorized only to appear specially, but asked the court to grant additional time to the defendant within which to answer, he had made a general appearance which could not be limited to its scope by his statement to the contrary. * * * The attempted reservation in the demurrer was ineffectual for any purpose."

In Cooke v. Myers, 86 Mont. 423, 283 P. 1114, this court unanimously held that, where in an amended complaint plaintiff states an entirely new cause of action he discontinues the former action and begins a new one; that the only method of raising the question whether such pleading has been improperly filed is by a motion to strike the pleading upon the ground that it is not in fact an amended complaint but the statement of a new action; and that by answering the amended complaint defendant had waived the irregularity.

In Beale v. Lingquist, 92 Mont. 480, 15 P.2d 927, 928, the defendants objected that they had not been given ten days notice of the hearing for the appointment of a receiver. This court said in an unanimous decision: "If for the sake of argument, we concede they were entitled to such notice, then, in order to avail themselves of the situation thus created, it was incumbent upon them to appear specially by challenging the right of the court to make the order of appointment because it did not have jurisdiction of their persons at the time the order was made. State ex rel. Bingham v. District Court, 80 Mont. 97,257 P. 1014; 4 C.J. 1316. By asking for relief on nonjurisdictional, as well as jurisdictional grounds they made a general appearance. * * * In other words, the motion to vacate [the order appointing the receiver] cured the want of sufficient notice in the first instance, if it was in fact insufficient, and vested the court with jurisdiction to make an order denying it."

In Paramount Publix Corporation v. Boucher, 93 Mont. 340,19 P.2d 223, 225, this court unanimously held: "That a pleading was filed without leave of court, when such leave is necessary under the provisions of sections 9186 and 9187 of the Revised Codes of 1921, is not a ground for demurrer, and consequently, `the only method of determining whether an amended pleading has been improperly filed is by motion to strike.' 21 Cal. Jur. 223; Cooke v. Myers, 86 Mont. 423, 283 P. 1114. The interposition of a demurrer would waive the irregularity, and even the filing of a demurrer at the time the motion is filed constitutes an involuntary waiver of the irregularity to be reached by the motion. State ex rel. Bingham v. District Court, 80 Mont. 97,257 P. 1014."

Here likewise the plaintiff's submission to the court of the[7] question of the legal sufficiency of the pleading is utterly inconsistent with the contention that that pleading was not properly before the court because the interveners had not properly established their right to file it.

Since the plaintiff's objection to relators' presence in the action as interveners must be deemed waived by his demurrer to their complaint in intervention, it is clear that the respondent court and judge had no jurisdiction to grant that objection. For the same reason this court has no jurisdiction in this proceeding to determine whether one who seeks a declaratory judgment holding a statute unconstitutional may prevent the intervention of others interested in sustaining the statute as valid.

Let a peremptory writ issue directing respondents to annul the order striking the relators' complaint and answer in intervention.

Associate Justices Morris and Cheadle concur.

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Dissenting Opinion

I do not believe that plaintiff, Brackman, by demurring to the complaint in intervention waived his right to stand upon his motion to strike which raised the jurisdictional right of the court to hear intervenors. The rule is well settled that jurisdiction of the court cannot be conferred by consent. Of course, Brackman could have waived the right to object to the court's jurisdiction over him but he is not raising that point. He submitted to the jurisdiction of the court over him when he filed his complaint. The question here is, has he taken such action that the court must allow the intervenors to remain in the case whether they have a sufficient interest in the case to be heard or not. I do not think so.

In 39 Am. Jur., p. 949, it is said: "The petition or complaint may also be assailed by demurrer on the same grounds as any other pleading, and on the further ground that the matters alleged do not warrant an intervention, and it may, like other complaints, be so insufficient that neither a motion to strike out nor a demurrer is required, and such insufficiency may be available at any stage of the proceeding by directing the attention of the court thereto, and doubtless may be suggested and acted on by the court ex mero motu."

And in Brown v. Saul, 4 Mart., N.S., La., 434, 16 Am. Dec. 175, it is said: "But a total want of legal right in a suitor, in relation to the matters in litigation, ought to be taken into consideration and acted on by courts of justice, at any stage of a cause. They should not remain silent spectators of infringements of the true principles of laws, which they are appointed to administer."

I think the court of its own motion has the right to strike a complaint in intervention if the court thinks the intervenor has not a sufficient interest in the litigation to entitle him to intervene, even though the point is not raised by the litigants. I do not agree that the demurrer is inconsistent with the motion. It is in harmony with it. Both the motion and the demurrer question the sufficiency of the allegations of the complaint in intervention to show sufficient facts to entitle intervenors to intervene. In fact, when the cause is again considered by the judge of the trial court, entertaining the view that he does, he will be obliged to sustain the demurrer to the complaint. Intervenors, who have alleged everything that can be alleged showing their interest, will then be obliged to come to this court again to have the point determined which is now before the court.

Under the rule above quoted from 39 Am. Jur., p. 949, the court has a sufficient interest in the conduct of its own proceedings to keep out parties whom it thinks have not a sufficient interest to intervene. The case of Cooke v. Myers,86 Mont. 423, 283 P. 1114, presented but an irregularity which the court held was waived by demurring to the amended complaint. It was not a case having to do with a jurisdictional matter. The same is true of the case of Paramount Publix Corp. v. Boucher,93 Mont. 340, 19 P.2d 223. Other cases relied upon in the majority opinion are not analogous because they deal with the question as to whether a litigant can demur to a pleading or otherwise plead to it and still not subject himself to the jurisdiction of the court. That point is not involved here.

I think the motion to strike should be considered on its merits and that Brackman did not waive the right to stand upon it by demurring generally to the complaint in intervention. I think we should determine the point whether the intervenors have a sufficient interest in the subject matter of the action to entitle them to come into the case by intervention.

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Dissenting Opinion

On July 2, 1945, complaint was filed in the District Court of Lewis and Clark County in cause of action numbered 19801, entitled O.L. Brackman, plaintiff v. Albert H. Kruse, Commissioner of Agriculture of the State of Montana, and Thomas E. McMasters, Dairy Commissioner, defendants, and on Sept. 27, 1945, the defendants filed their answer to such complaint. Thus did the District Court acquire jurisdiction of the persons of the parties plaintiff and defendant.

On January 28, 1946, the relators in the instant proceeding filed in the District Court a petition for leave to file a complaint in intervention in said cause No. 19801 and on the same day the District Court, on such ex parte application, issued an order permitting the relators, each and all, to become parties to said district court action under the general designation "Intervenors" and to file forthwith their complaint in intervention and answer to the complaint of plaintiff in union with defendants. Thereupon a complaint in intervention and answer was filed by intervenors and thus did the District Court acquire jurisdiction of the persons of the intervening relators.

On January 29, 1946, the plaintiff O.L. Brackman filed in the District Court a written motion to strike from the files the complaint and answer of the intervenors which had been filed on the preceding day. The motion was made upon the grounds (1) that the complaint in intervention fails to set forth sufficient facts to allege an interest of intervenors in the matter in litigation, in the success of either plaintiff or defendants or in an interest against both as required by section 9088, Revised Codes, (2) that the interests of the intervenors, if any, are already represented, (3) that the intervenors are not entitled to intervene in said action, and (4) that the answer of intervenors is improperly made a part of their complaint in intervention.

On the same date, to-wit: January 29, 1946, the plaintiff filed a demurrer to the complaint in intervention on the sole grounds that it "does not state facts sufficient to constitute a cause of action." By the filing of the motion to strike from the files and the demurrer, the plaintiff, in effect, concedes jurisdiction of the District Court over the persons of the intervenors.

While it is quite true that parties seeking to challenge the jurisdiction of the court over their persons waive the right so to do when they contend that through some defect in the process of the court or its service the court is without jurisdiction unless such jurisdictional question is raised at the earliest opportunity (State ex rel. Bingham v. District Court, 80 Mont. 97,257 P. 1014; In re Graye, 36 Mont. 394, 93 P. 266), yet "As to other questions of jurisdiction, * * * they are never waived, for consent will not give jurisdiction of subject-matter." Reed v. Woodmen of the World, 94 Mont. 374, 382,22 P.2d 819, 821.

In the instant case it is quite clear that the District Court had jurisdiction over the persons of the plaintiff, the defendants and the intervenors at the time plaintiff's general demurrer and motion to strike the intervenor's pleading from the files were interposed, and it is equally clear that the court's jurisdiction over the persons of the parties is not challenged by either the motion or the demurrer, each of which, conceding that the facts are as alleged in the complaint in intervention, nevertheless urge that under the statute such allegations fail to show a right in the relators to intervene in the action, which is to say that the allegations of the complaint in intervention are insufficient to state a case entitling relators to intervene.

The majority opinion fails to observe the distinction between the waiver of the right to challenge the jurisdiction of the court over the person of a party not properly brought within the jurisdiction of the court and the right to challenge the jurisdiction of the court over the subject matter of the action. State ex rel. Bingham v. District Court, supra, is wholly inapplicable to the facts of the instant case and I find nothing therein which says that in a case where the court's jurisdiction of the persons of the parties is conceded that a party may not challenge the sufficiency of a pleading either by general demurrer or by a motion to strike from the files or that when a pleading is wholly insufficient it may not be stricken from the files even though its sufficiency has also been attacked by a general demurrer.

Rehearing denied April 22, 1946.