Belknap v. Charlton

• Decision Date: 20 November 1893
• Citation: 25 Or. 41,34 P. 758
• Parties: BELKNAP et al. v. CHARLTON et al.
• Court: Oregon Supreme Court

34 P. 758

25 Or. 41

BELKNAP et al. v. CHARLTON et al.

Supreme Court of Oregon

November 20, 1893

Appeal from circuit court, Crook county; W.L. Bradshaw, Judge.

Action aided by attachment, by H.A. Belknap & Sons against C.M Charlton and another. From a judgment for plaintiffs defendants appeal. Reversed.

J.F. Moore, for appellants.

Geo. E Chamberlain. (M.E. Brink, on the brief,) for respondents.

BEAN, J.

This action was commenced in the circuit court for Crook county against the defendants, residents of Morrow county, to recover the sum of $61.20 upon an account for goods, wares, and merchandise sold and delivered, and services rendered. A writ of attachment was duly issued and served in Crook county, by attaching, in the hands of one J.F. Moore, certain moneys belonging to the defendants, but the summons in the action was not served on the defendants. Some three months after the action was commenced, and the service of the writ of attachment, the defendants appeared specially by their attorney for the purpose of applying to the court to discharge the attachment because the action had been commenced in the wrong county, and no service had been made upon them, which motion being overruled, judgment was rendered against them by default, from which they appeal claiming that such appearance, being special, gave the court no jurisdiction to render a judgment against them.

It is admitted that the voluntary appearance of a defendant to an action is equivalent to the service of a summons, and waives all defects in the process, (Code, § 62,) but the contention for defendants is that no appearance except as provided in section 530 of the Code,--that is, either by answer, demurrer, or giving plaintiff written notice,--can be deemed an appearance, within the meaning of section 62, supra. Section 530 provides that a defendant appears in an action when he answers, demurs, or gives plaintiff written notice of his appearance, and until he does so appear he shall not be entitled to be heard or be served with notice of subsequent proceedings in such action or suit, or in any proceedings pertaining thereto, except the giving of an undertaking in the provisional remedies of arrest, attachment, or the delivery of personal property. The arrangement of this section in the Code under the title of "Notices and Service and Filing of Papers," as well as its language, indicates, clearly, that its only purpose is to define what shall constitute such an appearance in an action as will entitle the defendant to be heard, as a matter of right, and to the service of notice of motions and subsequent proceedings in the action required by law to be served. Bank v. Rogers, 12 Minn. 529, (Gil. 437;) Grant v. Schmidt, 22 Minn. 1. It was not, we think, intended to define a voluntary appearance, within the meaning of section 62, and has no bearing upon the question of jurisdiction. A defendant may appear and submit himself to the jurisdiction of the court in many ways, without either answering, demurring, or giving plaintiff written notice of his appearance. He may do this by appearing in person or by attorney in open court, by attacking the complaint by motion, or by an application for a continuance, and in many other ways which will readily suggest themselves to one familiar with the course of judicial proceedings. But before he is entitled, as a matter of right, to be heard in the action, or in any proceedings pertaining thereto, or to be served with notice, he must appear in one of the ways provided in section 530. The question before us, therefore, must be determined without reference to that section, which, as we conceive, has no bearing upon the question as to whether a special appearance for the purpose of applying for the discharge of an attachment is a submission to the jurisdiction of the court, so as to authorize it to proceed to judgment in the action without the service of summons. It is claimed by the plaintiffs that while a defendant may appear specially to object to the jurisdiction of the court over him on account of the illegal service of process, ( Kinkade v. Myers, 17 Or. 470, 21 P. 557,) he must keep out of court for every other purpose, and that any appearance which calls into action the power of the court for any purpose, except to decide upon its own jurisdiction, is a general appearance, and waives all defects in the service of process, and many authorities are cited to sustain this position. The principle to be extracted from the decisions on this subject is that where the defendant appears, and asks some relief which can only be granted on the hypothesis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance, by its terms, be limited to a special purpose or not. Coad v. Coad, 41 Wis. 26; Blackburn v. Sweet, 38 Wis. 578; Pry v. Railroad Co., 73 Mo. 126; Sargent v. Flaid, 90 Ind. 501; Layne v. Railroad Co., 35 W.Va. 438, 14 S.E. 123; Handy v. Insurance Co., 37 Ohio St. 366; Bucklin v. Strickler, 32 Neb. 602, 49 N.W. 371; Burdette v. Corgan, 26 Kan. 102; Aultman & Taylor Co. v. Steinan, 8 Neb. 109. This seems to be a reasonable rule, and one which will adequately protect the rights of the parties, and determines the effect of defendant's appearance from the nature of the relief which he seeks to obtain. If he asks the court to adjudicate upon some...