Chase v. Hagood

• Decision Date: 17 November 1893
• Citation: 3 Idaho 682,34 P. 811
• Parties: CHASE v. HAGOOD
• Court: Idaho Supreme Court

34 P. 811

3 Idaho 682

CHASE v. HAGOOD

Supreme Court of Idaho

November 17, 1893

PRACTICE-APPEAL FROM JUSTICE'S AND PROBATE COURTS-WAIVER OF OBJECTION-TRIAL DE NOVO.-While it appears to be the accepted rule that a party who has objected to the sufficiency of process, by answering over, waives such objection, this rule does not apply to appeals from justice's or probate courts to district court under our statutes, which on such appeals give either party the benefit of all legal objections and exceptions in the court below, and the trial in the district court is de novo.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Affirmed, with costs to the respondent.

H. L Frost, for Appellant.

By filing a demurrer, then answering and thereafter participating in the trial in the probate court, defendant the respondent herein, made a general appearance in the action. (Rev. Stats., sec. 4892; I Am. & Eng. Ency. of Law, ft. p. 182, and authorities cited.) To have availed himself of any error the court may have made in sustaining the summons and its service, respondent should have stood on his special appearance and refused to appear further; otherwise the error, if any, will be considered merely technical and disregarded. (Idaho Rev. Stats., sec. 4231; Desmond v. Superior Court, 59 Cal. 274; Sweency v. Schultes, 19 Nev. 53, 6 P. 44; Lake v. Lake, 16 Nev. 366; Sears v. Starbird, 78 Cal. 231, 20 P. 547; Walker v. Turner, 27 Neb. 103, 42 N.W. 918; Shinn v. Cummins, 65 Cal. 97, 3 P. 133; Union Pac. R. R. Co. v. De Busk, 12 Colo. 294, 13 Am. St. Rep. 221, 20 P. 752; Ruby Chief Min. Co. v. Gurley, 17 Colo. 199, 29 P. 669; St. Louis R. R. Co. v. Whitley, 77 Tex. 126, 13 S.W. 853.)

J. F. Ailshie, for Respondent.

Revised Statutes of Idaho, at section 4841, in prescribing the manner of prosecuting appeals from justices' and probate courts, says; "In the district court either party may have the benefit of all legal objections made in probate or justices' courts. And the district court has the same power to grant relief by amendment and otherwise, as in actions commenced in the district court." Few states have a statute the phraseology of which is parallel with this, and it seems that the language of this statute and the spirit of modern courts in the administration of justice will go in support of our grounds on this proposition. We maintain that sec. 4892 of the Revised Statutes, cited by appellant, does not apply to the case at bar. If we had not made a special appearance and interposed this legal objection, but gone ahead and demurred or answered, or both, then we admit we would have forever waived whatever defect that might have been, and the section cited would apply. When we interposed the motion, if it be one recognized by the courts, then it was entitled to a hearing in the district court on appeal, where the case comes on de novo. The special appearance for the purpose of the motion only could not operate as a general appearance. (Shaw v. Rowland, 32 Kan. 154, 4 P. 146; Ferguson v. Rose, 5 Ark. 517; 1 Am. & Eng. Ency. of Law, 183, 184, foot notes and cases cited; Lyman v. Milton, 44 Cal. 630, and reaffirmed in Kinkade v. Myers, 17 Or. 470, 21 P. 557.) It seems to us that the better and sounder rule of law is that after a special appearance and motion to quash has been made and overruled by the court, a general appearance then will not waive the right nor cure the defect. (Deidshiemer v. Brown, 8 Cal. 340: Paul v. Armstrong, 1 Nev. 98; Gray v. Hawes, 8 Cal. 569; Atchison etc. R. Co. v. Nicholls, 8 Colo. 188, 6 P. 512; Linden Gravel Min. Co. v. Sheplar, 53 Cal. 245; Lander v. Flemming, 47 Cal. 614; Behlow v. Shorb, 91 Cal. 141, 27 P. 546; Kent v. West, 50 Cal. 185; Harkness v. Hyde, 98 U.S. 476; McDonald v. McLaury, 63 Hun, 626, 17 N.Y.S. 574.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

Plaintiff brought action in probate court to recover $ 300 damages alleged to have been sustained by him through the wrongful acts of defendant, in breaking into inclosure of plaintiff destroying a certain pigpen, and driving away certain hogs from the premises and possession of plaintiff. The action was commenced by filing complaint, and issuing summons thereon. Summons was dated May 10th, returned May 15th and served May 11th. The summons contained the following words: "The said action is brought to recover a judgment for the sum of $ 300 damages done to the plaintiff, together with the costs of this suit, against you, as more fully appears in plaintiff's complaint, now on file in my office at Mt. Idaho, in the county of Idaho and state of Idaho," which is the only statement of the case which appears in the summons. No copy of the complaint was served with the summons. On the return-day of the summons, defendant appeared specially, and moved to quash the summons upon the grounds (1) that the defendant had never been served with a copy of the complaint in the action; (2) that the summons does not give the defendant sufficient notice, as required by law. This motion was overruled by the court. The defendant then demurred to the plaintiff's complaint generally, and upon the ground of ambiguity and uncertainty, which demurrer was overruled; and the defendant then filed his answer, denying generally and specially all the allegations of the complaint. The case was then heard by the court without a jury. At the close of the proofs on the part of the plaintiff, as appears by the record, "defendant, by his attorney, demurred, and set up as a cause of demurrer that the court has no jurisdiction over the subject matter. Demurrer sustained, and cause dismissed without prejudice to plaintiff's legal and lawful rights." From this judgment, plaintiff appealed to the district court for said Idaho county. In the district court the defendant appeared specially, and moved to quash the summons on the ground that the copy of summons served on defendant does not give him sufficient notice, in that it does not contain a sufficient statement of the cause of action, in general terms, to apprise defendant of the nature of the claim against...