29 Wash. 558 | Wash. | 1902
The opinion of the court was delivered hy
On the 9th of December, 1899, the respondent, as plaintiff, commenced an action in the superior court of Whitman county against R. H. Field and C. C ITensley, as defendants, to recover a judgment o-u a promissory note for1 $800 and interest, which note was payable to the order of the plaintiff, and signed hy the defendants under the firm name of Field & Hensley. On the same day an affidavit for a writ of attachment was madei, and the affidavit stated that O. O. Hensley was not a resident of the state of Washington, etc. On the same day a writ of attachment was issued against the property of C. O. Hensley. On the same day the sheriff of Whitman county, as shown by his return, duly levied the writ upon and at
“It is ordered that said default be entered, unless defendant C. O. Hensley, by his attorney announces his de*561 sire and willingness to plead further, and by his counsel he at this time suggests that he may desire to plead further, and counsel having suggested that he cannot plead at this time without injustice to his client’s interests, it is ordered by the court that this matter be continued until the hour of one o’clock of the afternoon of this day within which time the said defendant C. C. Hensley by his counsel may make formal application for continuance of this cause which will be then considered by the court.”
On the same day, immediately following the above order, appears the following journal entry:
“Comes now the plaintiff by his attorneys, Hanna & Hanna, and moves to file an amended answer to complaint in intervention. The intervenor, by her attorney objects and the court overrules the objection, to which the intervenor excepts and the exception is allowed. The court allows the plaintiff to amend his answer.
“On motion of Thomas Heill, counsel for the intervenor, the court orders that the name of Charles-M. Wyman be entered as co-counsel for the intervenor, Phila A. Hensley.
“Comes now Hanna & Hanna, attorneys for plaintiff and moves for default against the defendant O. C. Hensley. Defendant C. O. Hensley makes application for time in which to file his answer.
“It is agreed between the parties hereto that the defendant O. O. Hensley shall answer to the merits of the case and that the intervention case be dismissed, and that the costs abide the result of the main case, and that the defendant O. G. Hensley ansiver to the1'merits within seven days.
“Wherefore', it is adjudged and ordered that the intervention of said Phila A. Hensley in said action be and hereby is dismissed, and that the costs now accrued in said action abide the result of the main case, and that the cost bills of the respective parties herein be submitted to the opposite party, and further that the defendant C. C. Hensley has leave to1 answer to the merits in said action and he is given seven days in which to serve and file his said answer.
*562 “Done in open court this 14th day of March, 1901.”
On the 30th of 'March, 1901, O. O. Hensley filed his answer to the merits. The answer, after entitling the cause, reads: “Comes now the defendant C. C. Hensley, and for answer to. the plaintiff’s complaint herein (1), denies,” etc. The answer denies the partnership., the making of the note by the defendant, and in addition sets up affirmative matter. A demurrer was interposed to the answer, and sustained. An amended answer was filed on May 22, 1901. The defendant C. C. Hensley in his amended answer denied the allegations of the complaint, and further alleged: That on the. 1st of June, 1898, the firm of Field & Hensley was dissolved, and that plaintiff had knowledge of the dissolution of the firm when he took the note in question from the defendant Field. On October 18, 1901, ‘he following order, omitting the title of the cause, appears in the journal entry:
“It is ordered that the case be and the same is hereby set. for trial on November 14, 1901, at the hour of 9 o’clock, a. m.
“On. motion of plaintiff by his attorneys, Hanna & Hanna, it is ordered that the attachment heretofore issued herein on all that portion of the southwest quarter of section 14, in township. 18 north, of range forty-five E., W. M., lying east of the O. R. & N. Co.’s right of way running through said quarter section of land, consisting of 100 acres more or less, be and the same is hereby dismissed.”
The trial, was had on November 19, 1901. On the next day the jury returned a verdict in favor of the plaintiff, and against the defendant. Hensley, for the amount sued for-. A judgment was rendered on this verdict. Hp- until the time the defendant O. O. Hensley filed his, answer to the merits his attorney in all answers and motions theretofore filed by him was particular in noting that he appeared specially. The errors complained of are as follows:
*563 “1st. The court, erred in overruling defendant’s motion to dismiss the case. 2d. The court erred in granting a default against the defendant while the answer to, the jurisdiction was, pending and undisposed of. 3d. The court erred in entering judgment against the defendant.”
The only question before, us is, did the superior court have jurisdiction to, hear and determine this case? The appellant contends that the court erred in not sustaining the motion to quash the publication of summons, and in not dismissing the action on his answer attacking the jurisdiction of the court. The respondent contends that after the ruling complained of the defendant voluntarily in open court agreed to, enter an appearance and answer to the merits if certain things were done, and in accordance with that agreement did so voluntarily appear. If such was the case it is useless to consider whether or not the court erred in its ruling on the motions made under thei special appearance. The judgment in this case was rendered on pleadings filed after the voluntary agreement and appearance of the defendant, if it is true the defendant voluntarily appeared. 1 Many authorities hold that when a, defendant-appeal’s and objects to jurisdiction, and his objection is overruled, he must then elect to, stand upon his objection, or to go into, the merits, and that going into the merits waives his exception. But we have held that filing a demurrer to- the: complaint before a justice of the peace after a special appearance claiming that no summons, had heen served upon which the court obtained jurisdiction of the person of the defendant did not waive the objection to the jurisdiction. Woodbury v. Henningsen, 11 Wash. 12 (39 Pac. 243). The question now presented is quite different. Here the defendant, asked for further time to plead when the court ruled on the motion for his default. The court then took the matter under advisement, and directed him
“It is now shown that the proceedings were stayed at the instance of the plaintiff in error, and not by the judge upon his motion, as was formerly supposed. This entirely changes the aspect cf the case with regard to the question •of jurisdiction. It was an appearance, an unqualified waiver of previous defects in the service of process. The relief granted was consistent only with the complete jurisdiction of the court over the party applying for it; and if founded upon such application, which it now appears to have been, the jurisdiction can no longer be questioned.”
Our statute expressly provides that a defendant appears in an action when he answers, demurs, makes any application for an order, or gives the plaintiff written notice of his appearance, and that every such appearance made in an action shall be deemed a general appearance, unless the defendant in making the same states that same is a special appearance. § 4886, Ballinger’s Code. Up until
The judgment of the court below is therefore affirmed, with costs to the respondent.
Reavis, C. J. and Hadley, Mount, Anders and Dunbar, JJ., concur.