Currey v. Trinity Zinc, Lead & Smelting Company
| Decision Date | 08 May 1911 |
| Citation | 139 S.W. 212,157 Mo.App. 423 |
| Parties | H. W. CURREY, Respondent, v. TRINITY ZINC, LEAD & SMELTING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Motion for Rehearing Filed July 20, 1911.
Rehearing Denied 157 Mo.App. 423 at 433.
Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.
Judgment reversed and cause remanded. (with directions).
A. G Young for appellant.
(1) The withdrawal of an appearance is within the discretion of the court. As a general rule it should be allowed when the appearance is unauthorized. 3 Cyc. 529; Graham v Spencer, 14 F. 603; 2 Amer. & Eng. Ency. Pl. and Pr 696. (2) If a party makes a motion in a cause, limiting his appearance to a particular purpose, this does not constitute a general appearance. 2 Ency. Pl. and Pr. 637; 3 Cyc. 509; Godley v. New Haven, 156 U.S. 518; Hawkins v. Pierce, 79 F. 452; Kime v. Lant, 68 F. 436. (3) To authorize a judgment against a party without service of process upon him, some acts of his clearly indicating his intention to voluntarily appear in this action must be shown by the record. Ferguson v. Ross, 5 Ark. 517; Lutes v. Perkins, 6 Mo. 58. (4) In several late, well reasoned cases it has been held that the giving of a redelivery bond is not such an appearance as will give the court jurisdiction of the person. If giving a bond is not an appearance, then certainly the offer to give a bond is not appearance. Hilton & Allen v. Can. Co., 48 S. E. (Va.) 899; Winter v. Packing Co., 93 P. 930. (5) The trial court will be more often reversed for refusing to set aside a default judgment than for doing so. Hall v. McConey, 132 S.W. 618.
George V. Farris and W. J. Owen for respondent.
(1) When an attorney is directed by his client to enter special appearance, yet in doing so he pleads matters operating as a general appearance, the client is bound thereby. McNeal v. Gossard, 74 P. 629, 68 Kan. 113; Kramer v. Gerlach, 59 N.Y.S. 855; Maher v. Railroad, 140 F. 921. (2) By an appearance for any other purpose than to object to the jurisdiction of the court over his person a defendant voluntarily submits himself to the jurisdiction of the court. Berham v. Lewis, 70 P. 337; Long v. Newhouse, 49 N.E. 79; Andrews v. Sheely, 51 So. 122; McCullough v. Railway, 73 A. 1007. (3) Where the defendant appears specially to question the jurisdiction of the court over his person, if he includes therein some other grounds recognizing the jurisdiction of the court, it amounts to a general appearance. West Grain Co. v. Bartley, 74 A. 730; Dudley v. White, 31 So. 830; Ray v. Trice, 37 So. 582; Nicholas & Sheppard v. Baker, 73 P. 302; McCoy v. Stockman, 46 N.E. 21; Gorham v. Tanquery, 48 P. 916; Teeter v. King, 76 P. 688; Summitt Lbr. Co. v. Cornell-Yale Co., 123 N.W. 444. (4) There are two ways of relieving property from the effect of an attachment by giving bond. One is by giving bond and security to the satisfaction of the officers executing the writ, payable to the sheriff, his successors or assigns, in double the value of the property attached, conditioned that the same shall be forthcoming when and where the court shall direct and shall abide the judgment of the court, and this bond is authorized by section 2317, Revised Statutes 1909, and the other is a bond given to the plaintiff with good and sufficient security to be approved by the court, conditioned that defendant shall pay to plaintiff the amount which shall be adjudged in favor of the plaintiff, etc., and this bond is authorized by section 2341, R. S. 1909. The former does not discharge the lien of an attachment but the latter dissolves the attachment and discharges property of lien. The former may not, the latter does render the defendant liable to be proceeded against, as in case of personal service. Winter v. Packing Co. 93 P. 930; New Albany v. Sulzer, 63 N.E. 873; Ferguson v. Glidwell, 48 Ark. 195; Whiting & Williams v. Budd, 5 Mo. 443; Evans v. King, 7 Mo. 412; Drake on Attachment, sec. 322. (5) Whether an appearance is general or special does not depend upon the form of the pleading, but upon the substance. If the defendant invokes the judgment of the court in any manner upon any question except that of the power of the court to hear and determine the controversy, his appearance is general. Bankers Ins. Co. v. Robbins, 80 N.W. 484; Frank v. Zeigel, 33 S.E. 761. (6) If the defendant intends to rely on a want of jurisdiction he must appear for the sole purpose to object to the jurisdiction; if he appears for any other purpose his appearance is general. Lorton v. Heye, 95 N.W. 1040; Thomason v. Ins. Co. 114 Mo.App. 109. (7) If a defendant has entered his appearance the subsequent withdrawal of his appearance dose not withdraw his appearance so as to deprive the court of the jurisdiction of his person. Harrison v. Bank, 69 N.E. 871. (8) There is an appearance for all purposes where defendant moves to vacate the judgment alleging an illegal service of the writ, and that he has a just defense to the claim which he set out. Jeannette v. Roheme, 47 A. 283; Henry v. Henry, 87 N.W. 522; Crawford v. Foster, 84 F. 939; Daley v. Iselin, 61 A. 919.
The plaintiff brought this suit in the circuit court of Jasper County, on the 2d day of July, 1910, to recover from the defendant $ 1620, and to impound certain funds belonging to the defendant in the hands of A. F. Carmean, clerk of the circuit court of said county. In aid of the suit, an attachment was issued and the funds of the defendant owing by tenants on its mining lands in said county, were garnisheed. Summons was issued to the sheriff returnable to the October term of the court. There was no service on the defendant, but on the 5th day of October, (the third day of the term) the following motion (omitting caption) was filed by the defendant: "Comes now the defendant and appearing for the purpose of this application only, and represents to the court that the plaintiff has attached the property and effects of defendant and asks the court to make an order permitting defendant to give bond in a sum to be fixed by the court and have the property and effects of defendant released from said attachment."
On the 13th day of October, the defendant appeared by its attorney and asked permission to withdraw the application above set forth, and the following order was duly entered of record: "By leave of court application for an order permitting the defendant to give a redelivery bond withdrawn."
On the 15th of October, judgment was rendered against the defendant in favor of the plaintiff. The judgment of the court recites, "it appearing to the court that the defendant has filed a motion herein praying the court for an order allowing it to file a redelivery bond, and asking the court for an order releasing the attached property herein," etc.
On the 18th day of October, the defendant filed a motion to set aside the default judgment, for the following reasons:
The motion was supported by the affidavit of appellant's attorney, but was overruled by the court, after the parties had offered testimony relating to the same.
It was shown by the testimony that the defendant is a foreign corporation, with its chief office out of this state; that for sometime previous to the institution of this suit, the plaintiff had been its general manager and attorney in Missouri; that he was superseded by a Mr. Ewell, and this suit was instituted by plaintiff to recover the amounts he claimed the defendant owed him for services rendered. The defendant had appointed Mr. Ewell its agent, upon whom process might be served in this state. The certificate had been filed with the Secretary of State. Mr. Ewell was located in Webb City, but had no sign at his place of business indicating that it was an office of the defendant.
The evidence further shows, however, that the plaintiff had transacted business with Mr. Ewell as the general manager of the defendant, and that plaintiff had this knowledge in plenty time to have served the summons upon Mr. Ewell, had he so desired.
The evidence further shows that it was understood between Mr Young, the attorney for defendant, and Mr. Ewell, its manager, that nothing should be done to enter the appearance of the defendant at the October term, for the reason that defendant was not ready for trial on the merits. The plaintiff was suing on an account as general manager and attorney, and the defendant wanted to ascertain what services had been rendered, as the defense was that plaintiff had been paid in full for the value of of the services rendered. Parties were mining on the defendant's lands, and its funds were tied up by the attachment proceedings. After talking the matter over, Mr. Young and Mr. Ewell agreed that they could give a redelivery bond to the sheriff under section 2317, Revised Statutes 1909. On reading the statute, the defendant's attorney was of the opinion that the words found therein, to-wit, "under the order of the court," required him to obtain an order from the court to authorize the sheriff to take the bond, and he appeared in court for the sole purpose of getting the order under that section of the statute; that when he afterwards learned that his appearance for that purpose might be construed as an appearance in the case, and that it was not necessary to apply to the court for an order under...
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