F.C. Austin Mfg. Co. v. Hunter
| Decision Date | 07 September 1905 |
| Citation | 86 P. 293,16 Okla. 86,1905 OK 100 |
| Parties | F. C. AUSTIN MFG. CO. v. HUNTER et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 12, 1906.
Syllabus by the Court.
Where one appears especially and objects to the jurisdiction of the court over his person by reason of defective service of summons, and his objections are overruled, he may file his answer and proceed to trial, and he will not be deemed to have entered a general appearance by reason thereof, if his objections are meritorious. Chicago Building & Mfg. Co v. Kirby, 63 P. 966, 10 Okl. 730; Jones v. Chicago & Mfg. Co., 64 P. 7, 10 Okl. 628. But where he, in addition to defending against the action of a plaintiff files a cross-petition and asks for affirmative relief against the plaintiff, he thereby submits his person to the jurisdiction of the court for all purposes of the entire action, and thereby estops himself from questioning the jurisdiction of the court in the first instance.
[Ed Note.-For cases in point, see vol. 3, Cent. Dig. Appearance §§ 53, 75.]
Where three persons enter into a written contract for the purchase of personal property (each signing his individual name) with a third party, in the absence of an allegation in the pleading or proof to the contrary, they will be deemed to be joint owners.
[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, § 181.]
When the evidence reasonably supports the verdict and judgment, this court will not weigh the evidence to determine as to whther or not the preponderance was for the other party.
[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3928.]
Error to District Court, Comanche County; before Justice Frank E. Gillette.
Action by A. J. Hunter and others against the F. C. Austin Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Stevens & Miller and I. B. Lipson, for plaintiff in error.
W. I. Gilbert and Chas. Mitschrich, for defendant in error.
A. J. Hunter, Frank L. Stetson, and Chas. S. Albright, in their individual names, jointly purchased a boiler, engine, and other appliances for a well-drilling outfit from the F. C. Austin Manufacturing Company. All of the property contracted for was shipped, but Hunter and Albright refused to receive it on the ground that the engine was too small. A second engine was shipped, but they refused to receive it, claiming that it had been used and was not new. They, having paid the freight, sued the defendant for damages, attached the property, and attempted to make service by publication. The defendant entered a special appearance and moved to quash the service, which motion was overruled, and it excepted. It then filed its answer, denying liability to the plaintiffs and, with it and as part of the same pleading, set out the contract of sale, alleging the facts in relation thereto, and prayed for an affirmative judgment against the plaintiffs, and Frank L. Stetson, who had been made a defendant because he refused to join with the plaintiffs in the bringing or prosecution of the suit.
The Austin Manufacturing Company contends that the court erred in overruling its motion to quash the service, which was made by publication. It is not necessary to decide this question for, while it has been held by this court that, where one enters a special appearance and moves to quash service of summons, if his motion is overruled, he is not compelled to desist from further participating in the case, but may file his answer and proceed to trial, without waiving his rights under his special...
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