Applington v. G. V. B. Mining Company

• Decision Date: 19 November 1898
• Citation: 6 Idaho 216,55 P. 241
• Parties: APPLINGTON v. G. V. B. MINING COMPANY
• Court: Idaho Supreme Court

55 P. 241

6 Idaho 216

APPLINGTON v. G. V. B. MINING COMPANY

Supreme Court of Idaho

November 19, 1898

DEFAULT JUDGMENT-SERVICE OF SUMMONS-JUDGMENT-ROLL.-On appeal from a default judgment against a foreign corporation who has not appeared in the action, the judgment-roll must contain evidence of the service of the summons upon that person designated by such corporation upon whom process is to be served under the provisions of section 2653, Revised Statutes, or else upon one of the agents or officers of such corporation mentioned in subdivision 2 of section 4144 Revised Statutes, and if such evidence of service of summons does not appear in the judgment-roll, the judgment will be reversed on appeal.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Reversed, with costs.

Texas Angel, for Appellant.

No brief filed.

A. F Montandon, for Respondent.

Before the filing and service of the notice of appeal in this cause which was filed and served December 14, 1897, defendant filed and served its general appearance. By a general appearance defendant gave the court immediate jurisdiction over its person (Code, sec. 4892), and thereby cured any defect in the service of summons upon it. If before the general appearance the judgment complained of was invalid because of insufficient service or an insufficient return, by the general appearance it was made valid, and thereby became and thenceforth was a perfect and valid judgment. (Steinbach v. Leese, 27 Cal. 299; Glidden v. Packard, 28 Cal. 649; Moore v. Koubly, 1 Idaho 55; Curtis v. Walling, 2 Idaho 416, 18 P. 54.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

This action was commenced by the respondent, as plaintiff, against the appellant, as defendant, to recover upon eight several promissory notes executed by the appellant to divers parties and by the several payees assigned to the respondent. Each of said notes was executed prior to January 1, 1897, and drew interest from date at the rate of eighteen per cent per annum, and the complaint alleges that interest was paid on each of said notes to January 1, 1897. The complaint alleges that the defendant is a corporation organized and doing business under the laws of the state of New York, and operating mines in Blaine county, Idaho. The complaint was filed January 12, 1897, and summons issued that day, and was placed in the hands of the sheriff of Blaine county, who returned that he served the same, with a copy of the complaint in the action, "by delivery to and leaving with Mrs. Nancy Thurber, the president of said G. V. B. Mining Company, a corporation, in the county of Blaine, on the thirteenth day of January, a copy of said summons," etc. The prayer for judgment in the complaint is as follows: "Wherefore plaintiff demands judgment against defendant for the sum of thirteen thousand two hundred forty-one dollar and fifty-six cents, with interest thereon from the first day of January, 1897, at the rate of one and one-half per cent per month, for two hundred fifty dollars attorney fee, and costs." The notice in the summons, and required by subsection 4, section 4140 of the Revised Statutes, is as follows, to wit: "And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiff will take judgment by default for the sum of $ 13,241.65, with interest thereon from the first day of January, 1897, at the rate of one and one-half per cent per month." The defendant having failed to appear, its default was entered by the clerk, and thereupon judgment was entered against the defendant by the clerk on the twenty-eighth day of January, 1897, for $ 13,670.30, and costs, taxed at $ 12.55. From this judgment the defendant corporation appeals, and this cause is before us upon the judgment-roll, which, under the provisions of section...