Goldstein v. Peter Fox Sons Co.

• Decision Date: 01 March 1912
• Parties: GOLDSTEIN et al. v. PETER FOX SONS CO.
• Court: North Dakota Supreme Court

22 N.D. 636

135 N.W. 180

GOLDSTEIN et al.

v.PETER FOX SONS CO.

Supreme Court of North Dakota.

March 1, 1912.

Syllabus by the Court.

Where a summons wherein a defendant company was erroneously named as a corporation, when in fact it was a copartnership, was personally served within the state on a partner as the managing agent of the alleged corporation, it constitutes a valid service upon the partner and copartnership sufficient to vest jurisdiction in the court to permit, on proper showing made, an amendment of the summons and complaint served that the defendant company may be designated therein as a partnership with partners named.

Such service was not void, and the amendment so permitted did not thereby bring new parties defendant into the suit; but, instead, it was merely descriptive of the entity against whom the action was brought and upon whom service was made.

Such personal service upon a partner confers jurisdiction upon the court to enter judgment under section 6847, R. C. 1905, jointly against the partner served and all members of the partnership named; and, where property is in custodia legis by virtue of the levy of an attachment in the action, the court has authority under said statute to order that the property held be sold and applied in satisfaction of the judgment.

Where the jurisdiction of the court over the person of the defendant is challenged under a special appearance made pending the action and before judgment, the same is not a general appearance, and a judgment entered by default is valid.

The question here presented going only to the jurisdiction of the court to enter the judgment sought to be vacated under a special appearance, this court will consider only the jurisdictional questions raised, and, on determining that the trial court had jurisdiction to enter the judgment, the decision of the trial court refusing to vacate the same is affirmed.

Appeal from District Court, Richland County; Allen, Judge.

Action by Abe Goldstein and another, copartners as Goldstein & Kulberg, against Anthony Fox and others, a partnership as the Peter Fox Sons Company. From an order denying defendants' application to vacate the judgment entered and dismiss the action for want of jurisdiction, they appeal. Affirmed.

Spalding, C. J., dissenting.Purcell & Divet, for appellants. J. A. Dwyer and Wolfe & Schneller, for respondents.

GOSS, J.

The summons and complaint was issued November 6, 1908, with an attachment, in an action by these plaintiffs against the defendant company designated as the Peter Fox Sons Company, a corporation, instead of against a copartnership with members named as now entitled. A car of poultry was attached November 9th, and personal service of summons, complaint, warrant of attachment, and notice of levy was then made at Hankinson upon Anthony Fox, one of the copartners. The defendant company was named as a corporation, and service upon it was attempted to be made by such personal service upon Anthony Fox as its managing officer, then within the state, and alleged to be in charge of the poultry attached. The provisional remedy was issued; and no question of the regularity of the levy or attachment proceedings is raised other than the right of the court to permit the amendment made to all the pleadings and files, so the action is now entitled against a partnership, defendant, with copartners named. On the thirtieth day after such levy and personal service upon Anthony Fox, and while the action was pending against the company named as a corporation, the many Foxes as members of the partnership entered, by their attorneys, a special appearance in the action brought against the alleged corporation. Therein they recited that they are “appearing specially for the purpose of objecting to the jurisdiction of the court, and for no other purpose, and move the court for an order setting aside the service of summons herein and dismissing this action.” With the motion as a part thereof, made under special appearance, was a notice of hearing thereon set for January 5, 1909; supporting the motion were affidavits of Frank Fox and Joseph Fox, wherein they aver that the Peter Fox Sons Company is not a corporation but a partnership, consisting of eight partners named Fox; and that no service has been made upon them except the service of the summons upon Anthony Fox as an officer, agent, or representative of the Peter Fox Sons Company charged as a corporation; and that all members of said partnership are residents of Chicago, and there engaged in the commission business. A continuance of the hearing on the motion was had under agreement between counsel and the court until January 19th, when it was further continued to be taken up at the convenience of the court and counsel. To that date no general appearance had been made by the attorneys for these appellants.

On December 19th, without notice, upon a showing by affidavits, plaintiffs moved the court to amend all the pleadings nunc pro tunc to read as now entitled. And on December 21st, and while the motion to set aside the service was pending, the motion to amend nunc pro tunc was granted, and all pleadings and files amended accordingly, as of the date of the commencement of the suit, November 6, 1908; and a new complaint was filed so entitled wherein the copartnership relation of defendants was pleaded. All this was without notice to opposing counsel who had appeared on the motion to dismiss made under special appearance. Thereafter, and on January 19th, 74 days after this issuance of the attachment, and more than 60 days from its levy, defendants being in default in general appearance, on proof thereof by affidavit and on proof on the merits submitted, the court entered findings of fact and conclusions of law under which, on January 20, 1909, a judgment was entered in favor of plaintiffs and against defendants jointly, adjudging the sale of the personal property levied upon; that its proceeds should be applied in satisfaction of such judgment and costs.

Immediately after the entry of this judgment, on affidavits and under a special appearance, an order to show cause was applied for and issued. It briefly recited the proceedings had and the pendency of the prior motion under special appearance, and cited plaintiffs to show cause forthwith why the service of the summons, the judgment entered, and all other proceedings had, should not be vacated and set aside and the action be dismissed. In applying for this order to show cause, defendants endeavored to avoid making a general appearance. Their motion was: “Come now the above-named defendants, appearing specially for the purpose of this motion and none other, objecting to the jurisdiction of the court, and move the court for an order setting aside and vacating the service of summons herein, and vacating and setting aside the judgment heretofore entered herein against the defendants, and vacating and setting aside all proceedings heretofore had herein.” On the return of the order to show cause the court, on February 10, 1909, denied the motion, thereby refusing to vacate the judgment or dismiss the action. Appellants appeal therefrom assigning error sufficient to require a review of these entire proceedings.

[1] A discussion of jurisdictional principles is now in order. Jurisdiction to issue the provisional remedy of attachment upon compliance with the statutory requisites was vested in the court by statute. A summons was issued, regular on its face, accompanied with a verified complaint and affidavit and undertaking for attachment, and upon their presentation the clerk issued from the court a warrant of attachment for service by levy thereunder as provided by law, and the property of the defendant, the Peter Fox Sons Company, was levied upon under the supposition that such company was in fact, as designated, a corporation. Whether the defendant was a corporate entity, existing as such by law, or whether instead it was a contractual entity, a partnership made up of various natural persons, is, so far as the validity of the provisional remedy is concerned, of no consequence. The warrant and proceedings had thereon, being regular, were valid until set aside. The court had jurisdiction of the general subject-matter and had acquired, under a valid levy, possession of property upon which it could proceed in rem, regardless of whether it ever procured personal service upon the defendant named in the process, it having power to proceed against such defendant by substitute service by the publication of summons. This power existed by virtue of the property so obtained under the levy. To that extent for 60 days after the issuance of the warrant of attachment,by force of statute, section 6950, R. C. 1905, a quasi or conditional jurisdiction remained in the court, for which purpose, under section 6850, R. C. 1905, from the time of “the allowance of the provisional remedy, the court is deemed to have acquired jurisdiction and to have control of all the subsequent proceedings.” The proceedings had, then, even though designated as against a corporation which in fact was nonexistent, were valid and clothed the court with jurisdiction to such an extent as might be necessary for it to control subsequent proceedings, including the property levied upon. And the writ, being valid, likewise protected the officer in his levy. While life was remaining in the proceedings had by provisional remedy, jurisdiction was thereby conferred upon the court to amend any process or pleadings by changing as it did the designation of the defendant from a corporation to a copartnership with individual members named. Such amendment could be made, subject, of course, to attack by motion for any irregularity existing. But until so attacked the warrant and proceedings had thereon was valid, and thereby kept in the court the jurisdiction it possessed by virtue of the warrant of attachment issued and the levy had, pending the...