Central Deep Creek Orchard Co. v. C.C. Taft Co.

• Decision Date: 28 October 1921
• Citation: 34 Idaho 458,202 P. 1062
• Parties: CENTRAL DEEP CREEK ORCHARD COMPANY, a Corporation, Respondent, v. C. C. TAFT COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

202 P. 1062

34 Idaho 458

CENTRAL DEEP CREEK ORCHARD COMPANY, a Corporation, Respondent, v. C. C. TAFT COMPANY, a Corporation, Appellant

Supreme Court of Idaho

October 28, 1921

SPECIAL APPEARANCE-MOTION TO QUASH SERVICE OF SUMMONS-JUDGMENT BY DEFAULT-ANSWER-STATUTORY CONSTRUCTION-ISSUE OF LAW-JURISDICTION-MOTION SOLELY ON JURISDICTIONAL GROUNDS-ORDER DENYING MOTION TO SET ASIDE DEFAULT JUDGMENT AN APPEALABLE ORDER-JUDICIAL DISCRETION-ABUSE OF.

1. A special appearance, for the purpose only of making a motion to quash the service of summons, is a proper practice in attacking the validity of such service in order to raise the question of the jurisdiction of the court.

2. A plaintiff in an action is not entitled to take a judgment by default where a proper motion by defendant is still before the court undisposed of, unless the determination of the motion either way would not affect the right of the plaintiff to proceed with the action.

3. A special appearance and motion to quash the service of summons meets the requirements of an answer within the meaning of C S., sec. 6832, which provides that: "Judgment may be had.... if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted," and during the pendency of such motion the defendant is not in default.

4. A special appearance and motion to quash the service of summons presents an issue of law, which issue must be disposed of by the court before it assumes jurisdiction of the defendant.

5. A motion based wholly on an alleged want of jurisdiction is not an appearance generally, or a waiver of any irregularity in the proceedings by which a party is attempted to be brought into court. The substance of such motion, and the character of the relief asked for therein, are only to be regarded in determining the question whether such appearance is special or general.

6. An order denying a motion to set aside a default judgment is a special order made after final judgment, and is appealable under the provisions of C. S., sec. 7152 7. Held, that the refusal of the lower court to set aside the default and judgment in this case upon motion of appellant was an abuse of judicial discretion.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action on contract. Judgment for plaintiff by default. Motion to set aside default, denied. Reversed and remanded.

Reversed and remanded, with instructions. Costs awarded to appellant. Petition for rehearing denied.

Walters Hodgin & Bailey, for Appellant.

While a defendant has a proper motion on file and undisposed of, default judgment cannot be taken against him unless the determination of the motion either way would not prevent the plaintiff from proceeding with the case. (Kerney v. Hatfield, 30 Idaho 90, 162 P. 1077; 23 Cyc. 750; 6 Ency. Pl. & Pr. 93; Culver v. Mountain Home Electric Co., 17 Idaho 669, 107 P. 65; Crosson v. Cooper, 41 Okla. 281, 137 P. 354; Ortega v. Vigil, 22 N.M. 18, 158 P. 487; 15 R. C. L. 666; 14 Stand. Ency. of Proc. 877; Atchison-Topeka & Santa Fe Ry. Co. v. Lambert, 31 Okla. 300, Ann. Cas. 1913E, 329, 121 P. 654; Rice v. Simmons, 89 Ark. 359, 116 S.W. 673; Stary v. Ware, 35 Miss. 399, 72 Am. Dec. 125; Hosmer v. Hoitt, 161 Mass. 173, 36 N.E. 835; Mitchell v. Campbell, 14 Ore. 454, 13 P. 190; Cooper v. Condon, 15 Kan. 572; Oklahoma State Bank v. Buzzard, 61 Okla. 88, 160 P. 462.)

Appellant had a right to appear specially by motion to test the jurisdiction of the court over it. (3 Cyc. 511; 2 Ency. Pl. & Pr. 625; Shaw v. Martin, 20 Idaho 168, 117 P. 853; Morris v. Miller, 4 Idaho 454, 40 P. 60; Domer v. Stone, 27 Idaho 279, 149 P. 505; In re Clark, 125 Cal. 388, 58 P. 22; Remsberg v. Hackney Mfg. Co., 174 Cal. 799, 164 P. 792; Clark v. Forbes, 34 Cal.App. 524, 168 P. 155; Roberts v. Superior Court, 30 Cal.App. 714, 159 P. 465.)

H. C. Hazel and H. J. Benoit, for Respondent.

Defendant waived any question of jurisdiction by its general appearance after judgment. (Security Loan & Trust Co. etc. v. Boston & S. R. Fruit Co., 126 Cal. 418, 58 P. 941; Olcese v. Justice's Court etc., 156 Cal. 82, 103 P. 317; Kaw Life Assn. v. Lemke, 40 Kan. 142, 19 P. 337; National Coal Co. v. Cincinnati, G. C. C. & M. Co., 168 Mich. 195, 131 N.W. 580.)

The default was properly entered, and the motion to quash the service of summons did not extend the time for appearing or answering the suit. (Mantel v. Casey, 31 Mont. 408, 78 P. 591; Higley v. Pollock, 21 Nev. 198, 27 P. 895; Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 40 L. R. A., N. S., 566; Pilant v. Hirsch & Co., 14 N.M. 11, 88 P. 1129.)

The order appealed from as disclosed by this record is not an appealable order. (Reay v. Butler, 69 Cal. 572, 11 P. 469; Tripp v. Santa Rosa St. R. Co., 69 Cal. 632, 11 P. 219; Goyhinech v. Goyhinech, 80 Cal. 409, 22 P. 175; Kubli v. Hawkett, 89 Cal. 638, 27 P. 57; Lee Chuck v. Quan Wo Chong, 91 Cal. 592, 28 P. 45; Symons v. Bunnell, 101 Cal. 223, 35 P. 770; In re Gregory's Estate, 122 Cal. 483, 55 P. 144; Hibbard, Spencer, Bartlett & Co. v. De Lanty, 20 Wash. 539, 56 P. 34; National Christian Assn. v. Simpson, 21 Wash. 16, 56 P. 844; Morrell Hdw. Co. v. Princess Gold-Min. Co., 16 Colo. App. 54, 63 P. 807; Birch v. Cooper, 136 Cal. 636, 69 P. 420; Kent v. Williams, 146 Cal. 3, 79 P. 527; Alpers v. Bliss, 145 Cal. 565, 79 P. 171; Taylor v. Marshall, 12 Cal.App. 549, 107 P. 1012; Steinberg v. Jacobs, 21 Cal.App. 765, 132 P. 1062.)

BUDGE, J. McCarthy and Lee, JJ., concur. Rice, C. J., and Dunn, J., dissent.

OPINION

BUDGE, J.

This is an action by respondent to recover from appellant $ 15,718.33 and interest, upon three alleged causes of action. From an order of the court denying appellant's motion to vacate the judgment and set aside the default, this appeal is taken.

Upon the filing of the complaint, summons was issued and delivered to the sheriff, and in his return thereon he certified that he personally served the summons upon appellant, "by delivering to and leaving with W. B. Amsbary, personally, the statutory agent of said defendant, C. C. Taft Company, a corporation, in the county of Twin Falls, on the twenty-second day of January, A. D. 1919, a copy of said summons; and that to the copy so delivered to and left with said W. B. Amsbary as the statutory agent of the defendant C. C. Taft Company, a corporation, was attached a copy of the complaint referred to in said summons.

". . . . that the said W. B. Amsbary is the authorized agent of said defendant corporation upon whom process issued by authority of law may be served as shown by the designation of agent on file in the office of the clerk of the above entitled court."

On February 10, 1919, appellant, by its attorneys, filed a special appearance and moved the court to quash the service of summons for the reason that "the defendant C. C. Taft Co., a corporation, is a corporation organized and existing under and by virtue of the laws of the state of Iowa, and not engaged and is not now engaged in transacting business within the state of Idaho within the purview of the statutes of the said state of Idaho relating thereto; that the nature of this action, as disclosed by the complaint, is personal in its nature and does not fall within the sections of the statutes of the state of Idaho authorizing service outside the state or by publication; that by reason of the foregoing, this court has acquired no jurisdiction of the defendant."

On February 12, 1919, upon request of respondent, a clerk's default was entered, and on February 22, 1919, judgment was entered by the court, in favor of respondent, upon its third cause of action, for $ 4,000, with interest and costs.

On March 7, 1919, appellant filed a motion to set aside the judgment entered by default against it, and all subsequent proceedings therein, for the reason, "that upon the date upon which default was entered, to wit, the twelfth day of February, 1919, a special appearance of the defendant, the C. C. Taft Company, had been duly served and filed and was and is a matter of record in said action, and undisposed of.

"That the default was improperly and prematurely entered."

In support of this motion, an affidavit was filed by one of appellant's attorneys, setting forth the above facts, and that appellant has no officer, representative or managing agent in Idaho, and on the hearing a certificate of the Secretary of state of Idaho was filed, dated February 26, 1919, to the effect that appellant's right to do business in Idaho was forfeited on December 2, 1918.

Appellant's motion was denied and overruled on March 25, 1919, and appellant assigns as error the action of the court in this regard.

It is urged on behalf of appellant that its appearance was special, for the sole purpose of challenging the jurisdiction of the court. The court could acquire jurisdiction over the person of appellant only by service of process upon it or by its voluntary appearance and submission. Appellant might have made a general appearance, thereby submitting its person to the jurisdiction of the court, or a special appearance as it did, merely for the purpose of testing the sufficiency of the summons to bring it within the jurisdiction of the court. This latter procedure is a proper practice in attacking the validity of the service of summons, inasmuch as it enables the defendant to raise the question of the jurisdiction of the court as a preliminary issue, and to save an exception to any adverse ruling of the court thereon.

Respondent on the other hand, contends, first, that the special appearance made by appellant did not operate to extend the time for answer or demurrer beyond...