75 N.W. 926 | N.D. | 1898
This action originated in a Justice’s Court. A summons issued on the nth day of February, 1896, returnable on the 15th day of the same month, and was delivered toa constable for service. It was returned without being served upon the defendant, with an indorsement thereon to the effect that the defendant was absent from said county. On the return day the justice issued a second summons for publication, under the authority conferred by section 6443 of the Revised Codes. On the return day named in the second summons certain proceedings were had in the action the nature of which are best explained by the entries made in the justice’s docket, which are as follows: “This is an action brought to recover sixty-four dollars and seventy-one cents and interest on a promissory note. Summons issued this nth day of February, 1896. Affidavit for attachment and undertaking filed this nth day of February, 1896, and warrant of attachment issued, summons returnable February 15th, 1896, at 10 o’clock a. m. February 15, 1896, at 10 o’clock a. m., the time set for trial, plaintiff appears by counsel, D. J. Laxdal, who files complaint and affidavit for second summons for publication; the returns of the officer showing that the defendant cannot, after diligent search and inquiry, be found in the County of Pembina, North Dakota. A second summons is accordingly issued directing the defendant to appear at 10 o’clock a. m., March 14, 1896. March 14, 1896, the hour set for trial, J. D. Stack appearing for defendant and D. J. Laxdal for plaintiff, and by consent of parties case adjourned until 1 o’clock p. m., this date. One o’clock p. m., the hour adjourned to, case opened, J. D. Stack appears specially, and files special objections to the jurisdiction of the court herein. Complaint in this case presented this 14th
The special objections to the jurisdiction of the court filed by defendant’s counsel, and referred to in the docket entry, consisted of a seides of objections to the jurisdiction of the justice over the person of the defendant, based upon alleged defects in the proceedings had to obtain service of process. The objections were overruled by the justice. In the view we have taken of the case, it will be unnecessary to determine whether the grounds of the objections filed with the justice were or were not valid. From the judgment as entered by the justice the defendant appealed to the District Court, and in his notice of appeal stated “that the said appeal is taken upon questions of law alone, and from the whole of said judgment, and appellant relies upon errors of law as disclosed by the records.” In the District Court a motion was made in plaintiff’s behalf for a judgment in its favor on the pleadings, upon the ground that the defendant had filed no answer or demurrer in the action. This motion was
In this court the discussion of counsel centers upon a single inquiry, namely, whether jurisdiction of the person of the defendant was acquired by the justice of the peace. It is nevertheless obvious that if the District Com! had, in any manner, acquired such jurisdiction before it entered its judgment of dismissal for want of jurisdiction, such judgment was erroneous, and must be reversed. We are clearly of the opinion that such jurisdiction existed in the District Court. In our opinion, this view may be sustained upon either of two independent grounds, i. e.\ Upon the ground of a voluntary general appearance of the defendant in the action by counsel in the Justice’s Court; secondly, upon the ground that the action was removed to the District Court by an appeal to that court under the provisions of the Revised Codes. It is a well established rule of practice that a voluntary appearance by a defendant entered in an action pending in a court of original jurisdiction, unless such appearance is made specially for the purpose of attacking jurisdiction, is in itself a confession that the court has jurisdiction of the person of the defendant. This rule has been recognized by the legislature and especially made applicable to Justices’ Courts. Revised Codes, section 6635, reads: “An appearance for any purpose (except to interpose or maintain an objection to the jurisdiction assumed
But in the case at bar there was an existing action which had been commenced in the usual and statutory mode of commencing actions, viz. by the issue of a summons. Rev. Codes, section 6635. The action being instituted, and then pending, the defendant, by his counsel, made a voluntary appeai'ance therein, and such appeax-ance was not made specially for the pux-pose of assailing the jurisdiction of the justice. Counsel, being before the court on the x-eturn day, orally entered into a stipulation with respect to the matter of adjoux'ning the hearing of the case to a time which was mutually satisfactory to counsel. Upon this stipulation proceedings were taken by the court by ordering an adjournment of the heaxdng of the case to said time, and thereupon the court, in due form entex-ed in its docket such order, embracing the stipulation upon which it was based. This was a voluntary appearance of the defendant in the action, unguarded by a special appearance, and operated, under the rule of practice we have mentioned, as a concession of jurisdiction over the person of the defendant. After such appearance the special appearance attempted to be made by defendant’s counsel came too late. The attitude assumed by the attempted special appearance was that of a stx-anger to the action seeking to deny that he was a party to the action. This attitude was entirely inconsistent with his former relation to the action in which the defendant had obtained a privilege which is accorded only to a party, viz. that of entei'ing into a stipulation with opposite counsel, and px-ocur
The appeal to the District Court was taken under the provisions of Revised Codes, section 6771, et seq. Section 6771 provides that “the appeal is taken by serving the notice of appeal on the adverse party or his attorney,” etc. It will be observed that this section does not prescribe the form of the notice, nor in any way indicate the questions which are to be presented to the appellate court. These omissions of the statute are significant in construing the same, in view of the fact that the former statute regulating appeals, and which wás superseded by the Revised Codes, did prescribe in terms the character and functions of a notice of appeal. The former statute was mandatory, and required the appellant to state in his notice whether the appeal was taken on questions of law or fact, or both. Compiled Laws, section 6129. Under Id. section 6131, the appellant had an election either to demand or not demand a new trial in the District Court, and the character of the trial in the appellate court was determined by the terms of the notice of appeal. All of these provisions were swept away by the revisors of the codes,
Upon these considerations it follows that the District Court was in a position to try the action on the merits, and hence it was error to dismiss the same. 2 Enc. PI. & Prac. 614, note 2. The right of appeal is a statutory right, and being such, it is competent for the legislature, not only to regulate the matter of appeals, but to deny the right for some purposes, and confer it for others. With the expediency of any such legislation the courts have nothing to do. A party is not, however, remediless in a case where no appeal is allowed. A judgment entered without jurisdiction may be attacked in various ways. The most usual mode is to resort to the writ of certiorari. This writ will be available in a case where no appeal is allowed, and where the law affords no other plain, speedy, and adequate remedy. Revised Codes, section 6098.
The judgment will be reversed, and the action will stand for trial anew in the District Court.