112 P. 408 | Or. | 1910
delivered the opinion of the court.
'‘Where the defendant appears and asks some relief which can be granted only on the hypothesis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court * * whether such an appearance by its terms be limited to a special purpose or not. * * If he asks the court to adjudicate upon some question affecting the merits of the controversy, or for some relief, which presupposes jurisdiction of the person, and which can be granted only after jurisdiction is acquired, he will be deemed to have made a general appearance, and to have submitted himself to the jurisdiction of the court, and cannot, by any act of his, limit his appearance to a special purpose. But, if granting the relief asked would be consistent with a want of jurisdiction over the person, he may appear for a special purpose without submitting himself to the jurisdiction of the court for any other purpose.”
“The statute, in providing how service shall be made, evidently implies that when a summons is placed in the hands of an officer for service that he will use ordinary diligence, at least, to find the party against whom the summons is issued, in order that he may make personal service upon him, but after using ordinary diligence, if he should fail to find such party, constructive (substituted) service may be made — and, when such service is made, the certificate should contain the fact that the party could not be found.”
And, in the absence of such statement in the certificate, the service was held void. This decision was approved in Hass v. Sedlak, 9 Or. 462, 464, holding that the certificate was a nullity. It is also approved in Settlemier v. Sullivan, 97 U. S. 444, 447 (24 L. Ed. 1110). The statement in the certificate, before us that “I could not find said defendant on the day said summons was delivered to me” does not show a compliance with this requirement. It is no indication that the officer did not then know where defendant was within the county, but only that he did not have time that day to search for him. The law contemplates that if defendant is within the county and not in hiding — that is, if he can, by the exercise of diligence, be found within the county — the officer must serve him personally. The return was insufficient to give the court jurisdiction of the defendant, and the motion to quash the service should have been allowed, it being insufficient to give the court jurisdiction of the defendant.