Ellingson v. Nw. Jobbers' Credit Bureau

• Decision Date: 31 October 1929
• Docket Number: No. 5717.,5717.
• Citation: 227 N.W. 360,58 N.D. 754
• Parties: ELLINGSON v. NORTHWESTERN JOBBERS' CREDIT BUREAU.
• Court: North Dakota Supreme Court

58 N.D. 754

227 N.W. 360

ELLINGSON

v.NORTHWESTERN JOBBERS' CREDIT BUREAU.

No. 5717.

Supreme Court of North Dakota.

Oct. 31, 1929.

Syllabus by the Court.

An order denying a motion to vacate the service of a summons upon a foreign corporation on the ground that the person on whom service was made was not an agent or representative of the corporation, and that consequently the service was and is wholly ineffective and the court without jurisdiction of the person of the defendant, is not an appealable order under the provisions of section 7841, Comp. Laws 1913. Security Nat. Bank v. Bothne, 56 N. D. 269, 217 N. W. 148, followed.

In case of an adverse judgment against the defendant, such order upon being included in a settled statement of case, may be reviewed upon an appeal from the judgment.

A defendant who has made timely and proper objection to the service of the summons by a motion to vacate such service does not waive the objection to the jurisdiction by answering and trying the case on the merits.

Appeal from District Court, Eddy County; Jansonius, Judge.

Action by Gertrude Ellingson, as administratrix of the estate of J. W. Ellingson, deceased, against the Northwestern Jobbers' Credit Bureau, a foreign corporation. From an order denying motion to set aside service of summons, defendant appeals. Appeal dismissed.Manly & Manly, of New Rockford (Todd, Fosnes & Green, of St. Paul, Minn., of counsel), for appellant.

S. E. Ellsworth, of Jamestown, for respondent.

CHRISTIANSON, J.

The defendant in this case appeared specially and moved that the service of the summons in the action be set aside. The motion was based upon the grounds that the defendant is a foreign corporation; that service of the summons in the action was made within the state of North Dakota on May 18, 1929, upon one C. E. Peterson; that said Peterson was not, at the time of such service, and never has been, a managing agent for the defendant; that said Peterson was not at the time such service was made upon him, or at any other time, acting as agent of, or doing business for, the defendant in the state of North Dakota; that the defendant did not at the time of such service have any property within the state of North Dakota and has never had any property within such state; and that said defendant did not, at the time of such service, maintain, and has never maintained, an office within the state. After a hearing, at which evidence was submitted by both parties, the trial court made an order denying the motion, and the defendant has appealed.

The plaintiff moves this court to dismiss the appeal on the ground that the order is not appealable. In support of the motion plaintiff cites and relies upon the decision of this court in Security National Bank of Fargo v. Bothne, 56 N. D. 269, 217 N. W. 148. The defendant seeks to distinguish the instant case from the case cited; but further argues that if the rule announced in Security National Bank v. Bothne, supra, is applicable to and covers the order in this case, then the question should be reconsidered and the former decision overruled.

[1] Appellant concedes that the right to appeal from an interlocutory order is purely a statutory one (Stimson v. Stimson, 30 N. D. 78, 152 N. W. 132); but it asserts that the order in question here is appealable under subdivision 4, § 7841, Comp. Laws 1913, which provides that an appeal may be taken to the Supreme Court from an order of a district court “when it involves the merits of an action or some part thereof.” In support of this contention appellant cites and relies upon the decision of the Supreme Court of Minnesota in Plano Manufacturing Co. v. Kaufert, 86 Minn. 13, 89 N. W. 1124.

We have carefully considered the arguments advanced by appellant's counsel and are agreed that the order in question here falls squarely within the rule announced in Security National Bank v. Bothne, supra. That case involved the question whether an appeal would lie from an order denying a motion to dismiss an action on the ground that substituted service of the summons was defective and hence the trial court without jurisdiction. In disposing of the question thus presented this court said: “Whether or not the instant action is one in which substituted service may properly be made under the statute (section 7428, supra), and whether or not the court erred in denying the defendants' motion to dismiss on the ground of lack of jurisdiction, are questions which we cannot properly determine on this appeal. An order denying a motion to dismiss on the ground of lack of jurisdiction is purely an interlocutory order. The right of appeal from such an orderdepends wholly upon the statute. Whitney v. Ritz, 24 N. D. 576, 140 N. W. 676;Wall v. First Nat. Bank of Crosby, 49 N. D. 703, 193 N. W. 51;Quarton v. O'Neil, 51 N. D. 842, 200 N. W. 1010. The statute (section 7841, C. L. 1913) enumerates the orders which may be reviewed on appeal. Clearly the court's order denying the motion to dismiss is not one therein enumerated. Strecker v. Railson, 19 N. D. 677, 125 N. W. 560. See, also, Ryan v. Davenport, 5 S. D. 203, 58 N. W. 568.” Security Nat. Bank of Fargo v. Bothne, 56 N. D. 269, 217 N. W. 149.

We are unable to see any basis for distinguishing the case here from the case cited. The principle announced in that case is clearly applicable to and controlling here provided the rule there announced is adhered to.

But, as said, appellant contends that the order in question here is one which involves the merits of the action or some part thereof, within the purview of subdivision 4, section 7841, and hence is appealable. In a word, appellant contends that this court ought to repudiate the rule announced in Security National Bank v. Bothne, supra, and overrule that decision, and adopt the rule announced by the Minnesota court in Plano Manufacturing Co. v. Kaufert, supra.

The meaning of the phrase “involves the merits of an action” in statutes relating to appeals is (as the decisions of the courts bear ample evidence) not always easy to ascertain. See St. Johns v. West, 4 How. Prac. (N. Y.) 329. Whether an order denying a motion to set aside the service of a summons involves the merits of the action or some part thereof within the purview of the statute so that an appeal will lie therefrom is one upon which the authorities are not agreed. The great weight of authority, however, is to the effect that such orders do not involve the merits of the action or some part thereof so as to be appealable under statutes authorizing appeals from such orders. 3 C. J. 479; 2 Stand. Ency. of Prac. p. 712. That the question is a debatable one may well be assumed from the fact that it has repeatedly arisen and been presented to the courts of last resort for determination. The question was presented to this court in Security National Bank v. Bothne, supra, and after due consideration this court ruled that the order was not an appealable one. While appellant has advanced forcible argument that the order in question ought to be appealable, we are not convinced that our decision in Security National Bank v. Bothne, supra, misconstrued the statute and that the rule there announced ought to be departed from. It is desirable that questions of practice should be stable; and established rules should be adhered to, unless they are clearly erroneous. Horton v. Wright, B. & S. Co., 43 N. D. 114, 174 N. W. 67.

[2] Appellant argues, however, that if the order is not appealable it will be deprived of all relief. This argument is based upon certain language in the decisions in Bolton v. Donavan, 9 N. D. 575, 84 N. W. 357, and N. P. R. R. Co. v. Barlow, 20 N. D. 197, 126 N. W. 233, Ann. Cas. 1912C, 763. In those cases reference is made to the following statutory provision (section 7842, Comp. Laws 1913): “Upon an appeal from a judgment the supreme court may review any intermediate order or determination of the court below, which involves the merits and necessarily affects the judgment, appearing upon...