Boss v. Hagan

• Decision Date: 03 November 1919
• Docket Number: 3264.
• Citation: 261 F. 254
• Parties: BOSS v. HAGAN et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

261 F. 254

BOSS v. HAGAN et al.

No. 3264.

United States Court of Appeals, District of Columbia.

November 3, 1919

Submitted October 14, 1919.

Appeal from the Supreme Court of the District of Columbia.

P. H Marshall and C. H. Merillat, both of Washington, D.C., for appellant.

Charles Linkins, of Washington, D.C., for appellees.

SMYTH Chief Justice.

The Hagans brought action in the municipal court against Boss to recover possession of certain premises, alleging that their vendor had rented the premises to Boss as a monthly tenant that the premises had been purchased by them for their home and were necessary for that purpose, that one of them was a war worker, and that the tenancy had been terminated by a due notice to quit.

Boss appeared specially and asserted that the Hagans were nonresidents of the District of Columbia and moved to dismiss the complaint because they had failed to give security for costs. The motion was overruled, and he entered a general appearance and defended on the merits. There was a judgment for the plaintiffs, and Boss appealed to the Supreme Court of the District.

The Hagans filed in that court an affidavit of merit under rule 19 and asked for judgment. To this Boss responded with an answering affidavit in which he renewed his claim that the Hagans were nonresidents of the District at the time of commencing the action in the lower court, and denied the jurisdiction of that court to try the case, because of their failure to give security for costs. He also challenged the sufficiency of the notice to quit, asserted that there was a material variance between the tenancy as alleged in the complaint and the one disclosed in the Hagan affidavit, and attacked the sufficiency of the affidavit under rule 19. The Supreme Court held that his affidavit was insufficient to raise any question of fact and gave judgment for the Hagans.

The first question presented relates to the jurisdiction of the municipal court. Section 11 of the Code provides that--

'Nonresidents shall not commence a suit before a justice of the peace (now municipal court) without first giving security for costs.'

This goes to the jurisdiction of the court over the person of the defendant, and he has a right to insist upon it; but it is a personal privilege, which may be waived by him, and this Boss did by pleading to the merits. 'The defendant had a right,' said this court in Savings & Loan Co. v Pendleton, 14 App.D.C. 387, 'to appear specially to take the objection to the proceeding of the justice without the condition precedent having been complied with by the plaintiff. But, having interposed that objection, he could not go farther and plead to the merits of the case without thereby waiving compliance by the plaintiff with the condition which required him to give security for costs before bringing his suit. ' See, also, Railway Co. v. McBride, 141 U.S. 127, 11 Sup.Ct. 982, 35 L.Ed. 659; Central Trust Co. v. McGeorge, 151 U.S. 129, 133, 14 Sup.Ct. 286, 38 L.Ed. 98; Costello v. Palmer, 20 App.D.C. 210.

In many jurisdictions it is the law that a person who in proper time challenges the jurisdiction of the court over his person, and after the challenge has been overruled preserves the objection in his answer, does not waive it by answering over and going to trial on the merits. Arroyo Ditch Co. v Superior Court of Los Angeles County, 92 Cal. 47, 28 P. 54, 27 Am.St.Rep. 91; 7 R.C.L. 78; Lower v. Wilson, 9 S.D. 252, 68 N.W. 545, and note 62 Am.St.Rep. 865. But this is not the federal rule, as is pointed out by Mr. Chief...