Beam v. Berryman

• Decision Date: 25 November 1930
• Docket Number: Case Number: 19765
• Parties: BEAM et al. v. BERRYMAN.
• Court: Oklahoma Supreme Court

1930 OK 528

293 P. 550

146 Okla. 94

BEAM et al. v. BERRYMAN.

Case Number: 19765

Supreme Court of Oklahoma

Decided: November 25, 1930

Syllabus

¶0 1. Attachment--Statutory Affidavit Jurisdictional.

The affidavit for an attachment required by section 341, C. O. S. 1921, is jurisdictional as a basis of the attachment proceedings, and if there is no affidavit, the attachment should be dissolved on motion therefor.

2. Appearance--General Appearance Though Denominated Special.

Where a defendant seeks to enter a special appearance in a cause by motion and sets forth therein both jurisdictional and nonjurisdictional grounds for dismissal, the filing of such motion amounts to a general appearance, and the fact that he denominates it a special appearance avails him nothing. Nichols & Shepard Co. v. Baker, 13 Okla. 1, 73 P. 302.

Commissioners' Opinion, Division No. 2.

Error from District Court, Ellis County; C. C. Smith, Assigned Judge.

Action by Charles Beam and S.W. Miller against J. W. Berryman. Judgment for defendant, and plaintiffs appeal. Affirmed in part, and reversed and remanded in part.

Leedy & Leedy, for plaintiffs in error.

Madden, Adkins & Pipkin and O. L. Aley, for defendant in error.

DIFFENDAFFER, C.

¶1 Plaintiffs in error, hereinafter referred to as plaintiffs, filed their petition against defendant in error, hereinafter referred to as defendant, on the 14th day of October, 1927, in which they alleged that defendant was then and had been for many years a nonresident of the state of Oklahoma, and resided in Clark county, Kan.

¶2 The petition declared on nine alleged causes of action. The first eight were for rents or for value of the use and occupancy of certain lands in Ellis county, Okla., alleged to have been owned by plaintiff Miller, and used and occupied by defendant for a number of years, without his having paid any rental. It was alleged that each of these alleged claims had been assigned by plaintiff Miller to plaintiff Beam, and Beam alone prayed for judgment.

¶3 The ninth cause of action was for damages to the land, or parts thereof, for destruction of trees, fences, etc., and plaintiff Miller alone prayed for judgment upon this cause of action. At the same time, plaintiffs attempted to procure attachment on defendant's property and obtain service of nonresident summons by the sheriff of Clark county, Kan. The purported affidavit was filed as a basis for the attachment, though apparently prepared with the view of having the verification before the court clerk or his deputy. This was not done, and it appears in the record as being unverified. The same is true of the affidavit filed as a basis for the nonresident summons. A nonresident summons was issued and served upon defendant by the sheriff of Clark county, Kan. An order of attachment was issued and returned by the sheriff of Ellis county, not served for want of personal property, with a notation thereon that it was so returned at the request of plaintiffs. Several orders of attachment were subsequently issued without further affidavit having been filed. Also several other nonresident summonses were issued and served by the sheriff of Clark county, Kan., without further affidavit. These summonses and orders were attacked by defendant by filing "suggestions" of lack of jurisdiction, calling the attention of the court to various alleged defects in the proceedings other than the failure to verify the affidavits for attachment and nonresident summons. In each of them, one filed December 22, 1927, and the other February 21, 1928, defendant recited that he was appearing specially for the purpose of the suggestions and for no other purpose. In the first, he also stated:

"Plaintiffs' petition reflects and discloses such an improper joinder of causes of action and parties plaintiff, and such a misjoinder of each and both, as to defeat plaintiffs in their attempt to prosecute said suit, and, as reflected by the pleadings, that court has no jurisdiction to adjudicate and determine the matters raised by the pleadings in the form so presented."

¶4 In the second, he stated substantially the same as follows:

"Plaintiffs' petition reflects and discloses such an improper joinder of causes of action and parties plaintiff and such a misjoinder of each and both as to defeat plaintiffs in their attempt to prosecute said suit. Such misjoinder is reflected by the petition on file herein, and, due to such disregard of the principles governing the joinder of parties and causes of action, plaintiffs should not prevail in an attempted seizure of defendant's property, and in such a way force his appearance in this court for all purposes before he is in a position to attack such pleadings.

"Wherefore, defendant suggests to the court the lack of jurisdiction on its part to proceed further in this cause."

¶5 On March 27, 1928, plaintiff filed a motion to strike said "suggestions" from the files, on the grounds that they were neither demurrers, motion or other pleadings recognized by law, and, also, that they were filed for delay and not in good faith. This motion was sustained on April 3, 1928, by the court, without stating upon which ground the order was made, or whether on both. On the same day defendant filed a special appearance and motion to quash and set aside the summons and service thereof, for the reason that the same was not issued, served, nor returned, as provided by law. On April 6th, this motion was sustained, and, at the request of plaintiffs, the cause was continued for the term for service. Thereafter, on April 12th, plaintiffs, without filing a new affidavit therefor, filed a praecipe for alias order of attachment. A new or alias order of attachment was issued and executed by the sheriff of Ellis county by attaching certain lands in that county as the property of defendant. On May 3, 1928, plaintiffs filed an affidavit to obtain service by publication, and summons by publication was issued and published in three consecutive issues of the Ellis County Capital, a weekly paper published in Ellis county. The first publication was made on May 4, 1928. Proof of publication in due form was filed May 29, 1928. On May 5, 1928, plaintiff filed proof of mailing a copy of the petition and publication notice showing same to have been mailed on May 5, 1928. On June 5, 1928, defendant filed special appearance and motion to quash the summons and service upon the grounds that same was not issued, served, and returned as provided by law. On August 1, 1928, defendant filed a motion to quash the attachment proceedings theretofore had and dismissed plaintiffs' action. He recited therein that he was appearing specially for the purpose of the motion, and then recited nearly all the proceedings that had been had up to the issuance and service of the last order of attachment, and then stated:

"Defendant here and now refers to all of the court papers and files in this cause, and makes the same a part of this motion as though fully set out and incorporated herein.

"Defendant says that in contemplation of law this action has never been commenced as the law provides that, in actions where service by publication is proper, the action shall be deemed commenced at the date of the first publication, and that an attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of the law when the party faithfully, properly, and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within 60 days. That this case is a proper case for service by publication, but that no publication service was attempted to be had therein until the 24th day of May, 1928, and the facts as reflected by the court papers disclose that plaintiff has not faithfully, properly, and diligently endeavored to secure publication service.

"That, as reflected by the files, plaintiffs, by their conduct, did at diver dates subsequent to that of the institution of the suit, and after the expiration of 60 days from the institution thereof, abandon the attachment proceedings attempted to be had at the time of the institution of the suit, and that no valid service had been had upon this defendant in the meantime, and that by reason of all of the matters and things herein alleged, as well as additional matters, reflected by the court files, said suit was not in contemplation of law pending at subsequent dates when plaintiff instituted the attachment proceedings, and was not pending on the 3rd day of May, 1928, at the time they caused their publication notice to be issued, and accordingly, and for the reasons reflected and set out herein, this motion to dissolve the attachment and dismiss this cause should be in all things sustained, and this defendant prays judgment of the court sustaining said motion quashing said attachment proceeding and dismissing said case."

¶6 On August 1st, this motion was sustained and the action was dismissed by the court. From these orders, plaintiffs appeal.

¶7 The errors assigned are: (1) In...