D. W. Onan & Sons, Inc. v. Superior Court

• Decision Date: 31 March 1947
• Docket Number: 4966
• Citation: 65 Ariz. 255,179 P.2d 243
• Parties: D. W. ONAN & SONS, Inc., et al. v. SUPERIOR COURT, SANTA CRUZ COUNTY et al
• Court: Arizona Supreme Court

179 P.2d 243

65 Ariz. 255

D. W. ONAN & SONS, Inc., et al. v. SUPERIOR COURT, SANTA CRUZ COUNTY et al

No. 4966

Supreme Court of Arizona

March 31, 1947

Original proceeding for writ of prohibition by D. W. Onan &amp Sons, Inc., a Minnesota corporation, and others, against the Superior Court of the State of Arizona, in and for the County of Santa Cruz, and the Honorable Gordon Farley as judge of such court.

Peremptory writ issued.

Arnold T. Smith, of Tucson, for petitioners.

Bryce H. Wilson, of Tucson, for respondents.

LaPrade Judge. Stanford, C. J., and Udall, J., concur.

OPINION

LaPrade, Judge.

This is an original proceeding in this court by D. W. Onan & Sons, Inc., a Minnesota corporation, and D. W. Onan & Sons, a limited partnership, against Superior Court of Santa Cruz County and Gordon Farley as judge thereof, petitioning this court for a peremptory writ of prohibition directed to said court and judge for the purpose of preventing said court from continuing to assume or exercise jurisdiction over that certain action, being Cause No. 3841, now pending in the Superior Court of Santa Cruz County, in which Andrew Kux, individually, and Andrew Kux, doing business as Occidental Electric Company, is plaintiff and the petitioners herein are defendants. Leave to file the petition was granted and the same was legally noticed for hearing and presented by oral argument and briefs.

Plaintiff in the court below brought an action seeking damages for a breach of written contract against the Onan corporation, the Onan partnership, and the individual partners. Plaintiff attempted to secure service of the summons by registered mail. At the time of filing his complaint, and as a predicate for securing constructive service, plaintiff filed his affidavit setting forth that all of the defendants were nonresidents of the State of Arizona; that they were residents of the State of Minnesota; that the corporation was a Minnesota corporation and was doing business in Santa Cruz County, Arizona, but had no legally appointed and constituted agent in the State of Arizona. The affidavit did not allege that the defendants had any property in the state. The affidavit of proof of service disclosed that copy of the summons and complaint had been forwarded by registered mail to the corporation only. The record does not disclose that any attempt was made to serve the partnership or the individual partners. Nevertheless all of the named defendants appeared by counsel and filed a document entitled "Special Appearance under Rule 12(b). Motion to Dismiss for Lack of Jurisdiction and Notice of Motion." This document announced that all of the defendants appeared specially and moved to dismiss the action for want of jurisdiction over the defendants and each of them. The motion set up that all of the defendants were nonresidents of the State of Arizona and were residents of the State of Minnesota; that neither the corporation nor the partnership had a legally appointed agent in the State of Arizona; that none of the defendants was doing business in the State of Arizona, nor had theretofore done business in the State of Arizona; and that they had no property in the State of Arizona. The motion was verified on behalf of the corporation by its president, and for the partnership and the individual partners by the several partners. No counter-affidavits were filed, but at the time of the hearing on the motion the court at the request of counsel for plaintiff permitted plaintiff, over objection, to offer oral and documentary evidence, all of which was offered, received, and admitted for the purpose of contradicting the allegations of the verified motion, and to establish that the defendants or some of them were doing business within the State of Arizona. After considering the motion, the court entered this order:

"Defendant's motion to dismiss in the above entitled case is granted as to C. W. Onan, D. W. Onan, and R. D. Onan, individually. That portion of the motion as to D. W. Onan & Sons, a co-partnership, and D. W. Onan & Sons, Inc., a Minneapolis corporation is denied; it appearing to the Court that said co-partnership and corporation were doing business in the State of Arizona at the time of and prior to the publication of summons."

Under the trial court's theory, or any other theory, the motion should have been granted as to the partnership for the reason that the record then before the trial court disclosed that no service was attempted or had on the partnership or the individual partners. That this conclusion is correct cannot be doubted unless the motion to dismiss the action for want of jurisdiction over the persons of the defendants constituted a general appearance and had the effect of bringing the defendants within the jurisdiction of the court.

This is an appropriate time to consider the propriety of the special appearance of defendants and their motion to dismiss for lack of jurisdiction under Rule 12(b), Section 21-429, A.C.A.1939, and its effect. This rule reads as follows:

"21-429. Defenses and objections -- How presented. -- Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, of third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion; (1) lack of jurisdiction over the subject-matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one (1) or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief."

This rule constitutes a departure from our practice in effect at the time of the adoption of the new Rules of Civil Procedure. In Lore v. Citizens Bank of Winslow, 51 Ariz. 191, 75 P.2d 371, it was held that a defendant who moved to set aside the service of summons, to vacate the judgment, and to dismiss the action had made a general appearance regardless of the fact that it was designated a special appearance. The proper procedure under the previous statutory rules was to move to quash the summons and its service. In the Lore case the holding was that by filing a motion to dismiss, the pleader invoked the power of the court to grant relief on other than jurisdictional grounds, and as a consequence submitted himself to the general jurisdiction of the court.

Under the new Rule 12(b) all defenses or objections are presented by motion or pleading. All distinctions, many of them tenuous, between demurrers, motions, exceptions for insufficiency, and pleas, are avoided. Special appearances to challenge jurisdiction over the persons or improper venue are not necessary. In re Rackliffe's Estate, 366 Ill. 22, 7 N.E.2d 754.

If the defendant so desires he may present every defense or objection that he has in an answer without waiving any rights. An objection that the court has not secured jurisdiction over the defendant may be pleaded in the answer. Oftentimes a defendant might prefer to raise certain objections which he believes will be sustained before resorting to the trouble of pleading an answer. This he may do. Under this Rule 12 (b) he may raise any or all of the following objections which he may have by motion: (1) lack of jurisdiction over the subject-matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted.

It has been held that an objection to personal jurisdiction is not waived by joining it with objections to jurisdiction of the subject matter, American-Mexican Claims Bureau, Inc., v. Morgenthau, D. C., 26 F.Supp. 904; Toulmin v. James Mfg. Co., D.C., 27 F.Supp. 512, nor by pleading it in the answer along with defenses to the merits and a counterclaim, Sadler v. Pennsylvania Ref. Co., D. C., W.D.S.C.1940, 33 F.Supp. 414.

In the case of Glazier v. Van Sant, D.C., 33 F.Supp. 113, 115, defendant filed separate motions to dismiss the action on the several grounds of defective service of process and misjoinder of parties. The plaintiff contended that the motion to dismiss upon the ground of a misjoinder of parties subjected defendant to the jurisdiction of the court as being tantamount to an appearance. The court aptly stated the law as follows:

"Formerly it was the law that such a demurrer and appearance would waive jurisdiction over the person and this court has so held. Such ruling, however, was made before the adoption and promulgation of the Rules of Civil Procedure for the District Courts, * * *. Now, by subparagraph (b) of Rule 12 [28 U.S.C.A. following section 723c], * * * 'No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.'

"In view of this clear change of the former rule in such cases, the defendants by their motions did not waive their objections, and accordingly the motions to dismiss should be sustained. It will be so ordered."

In an action removed from a state to a federal court, an objection to jurisdiction over the person is not waived by answering to the merits. Sadler v. Pennsylvania Refining Co., D.C., 33 F.Supp. 414.

In Devine v. Griffenhagen, D.C., 31 F.Supp. 624, 625 counsel for defendant...