Bankers' Life Ins. Co. v. Robbins

• Citation: 59 Neb. 170,80 N.W. 484
• Parties: BANKERS' LIFE INS. CO. v. ROBBINS.
• Decision Date: 18 October 1899
• Court: Supreme Court of Nebraska

59 Neb. 170

80 N.W. 484

BANKERS' LIFE INS. CO.

v.ROBBINS.

Supreme Court of Nebraska.

Oct. 18, 1899.

Syllabus by the Court.

1. A special appearance precludes the party entering such appearance from obtaining any decision on the merits of the controversy.

2. Whether an appearance is general or special does not depend upon the form of the pleading, but upon its substance.

3. If a defendant invoke the judgment of the court, in any manner, upon any question except that of the power of the court to hear and decide the controversy, his appearance is general.

4. The proceeding to revive a dormant judgment is not the commencement of a new action, but the continuation of an action previously commenced.

5. The general law as to the limitations of actions does not apply to the proceeding to revive dormant judgments.

6. The limitation as to the time within which steps must be taken to revive an action in the name of the representatives of a deceased person does not apply to the revival of dormant judgments.

7. The word “manner,” found in sections 472 and 473 of the Code of Civil Procedure, respecting the revival of judgments, does not include the element of time.

8. A question raised for the first time in this court will not be considered except it be of a jurisdictional character.

Error to district court, Valley county; Kendall, Judge.

Action by A. M. Robbins against the Bankers' Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.N. S. Harwood, John H. Ames, and E. F. Pettis, for plaintiff in error.

A. M. Robbins and M. B. Reese, for defendant in error.

SULLIVAN, J.

In November, 1892, Anna B. Morrow recovered a judgment in the district court of Valley county against the Bankers' Life Insurance Company of Lincoln, and soon afterwards caused an execution to be issued thereon. This writ was delivered to the sheriff of Lancaster county, who returned it unsatisfied in consequence of having been served with an injunctional order issued by the district court in an original action instituted by the defendant on the theory that the Valley county judgment was void. In July, 1893, Mrs. Morrow died, and A. M. Robbins, the defendant in error, was, in pursuance of testamentary nomination, appointed executor of her will. He immediately accepted the appointment, and, having first duly qualified, entered upon the discharge of his trust. In 1898 the action to enjoin the enforcement of the judgment against the insurance company was finally decided on the merits in favor of Robbins, who had been substituted for Morrow as a party defendant therein. This proceeding was then commenced to revive, in the name of the executor, the judgment rendered by the district court of Valley county in 1892. In response to a conditional order of revivor served upon it, the company, by its attorney, appeared in court, and filed what is styled a “special appearance,” assigning 18 objections to the revival of the judgment. Some of these objections raised issues of fact, which were tried and submitted upon oral evidence. The findings of the court upon all questions presented were in favor of the executor, and an order was thereupon entered reviving the judgment in his name. The defendant, by this proceeding in error, brings the record here for review.

The first contention is that the service of the conditional order did not give the court jurisdiction to hear the plaintiff's application or grant the relief demanded. We will not inquire into the efficiency of the order as a jurisdictional process, because we are satisfied that the defendant, by its “special appearance,” appeared generally, and thus became subject to the authority of the court. Among the objections urged to the revivor of the judgment were these: That the several kinds of relief sought by the plaintiff were improperly joined, that Robbins was never the duly-constituted executor of Morrow's will, and that the right to have the judgment revived had become barred by the statute of limitations. Upon two issues raised by these objections the company presented evidence, and sought the judgment of the court in its favor. Had the court decided these points against the plaintiff, he would have been defeated, not because the court was without jurisdiction of the defendant or of the subject-matter of the action, but because the facts alleged and proved did not entitle him to the relief demanded. These objections did not relate to the power of the court to hear and determine the application. They denied Robbins' right to a revivor because his demands for relief were improperly blended, because he had no capacity to maintain the proceeding, and because the claim which he was seeking to enforce had become stale. The effort of the company evidently was to try the matter, and obtain a judgment on the merits, while standing just outside the threshold of the court. This it could not do. A party cannot be permitted to occupy so ambiguous a position. He cannot deny the authority of the court to take cognizance of an action or proceeding, and at the same time seek a judgment in his favor on the ground that his adversary's allegations are false, or that his proofs are insufficient. “A special appearance,” says Mitchell, J., in Gilbert v. Hall, 115 Ind. 549, 18 N. E. 28, “may be entered for the purpose of taking advantage of any defect in the notice or summons, or to question the jurisdiction of the court over the person in any other manner; but filing a demurrer or motion pertaining to the merits of the complaint or petition constitutes a full appearance, and is hence a submission to the jurisdiction of the court.” Whether an appearance is general or special does not depend upon the form of the pleading filed, but on its substance. If a defendant invoke the judgment of the court, in any manner, upon any question except that of the power of the court to hear and decide the controversy, his appearance is general. Hurlburt v. Palmer, 39 Neb. 158, 57 N. W. 1019;South Omaha Nat. Bank v. Farmers' & Merchants' Nat. Bank, 45 Neb. 29, 63 N. W. 128;Fowler v. Brown, 51 Neb. 414, 71 N. W. 54;Warren v. Cook, 116 Ill. 199, 5 N. E. 538; 2 Enc. Pl. & Prac. 636.

We will now inquire whether the court was justified in making...