Jameson v. Harvel

• Citation: 139 Okla. 39,280 P. 1080,1929 OK 393
• Decision Date: 01 October 1929
• Docket Number: Case Number: 18436
• Parties: JAMESON v. HARVEL et al.
• Court: Supreme Court of Oklahoma

1929 OK 393

280 P. 1080

139 Okla. 39

JAMESON v. HARVEL et al.

Case Number: 18436

Supreme Court of Oklahoma

Decided: October 1, 1929

Syllabus

¶0 1. Appearance--When Appearance General.

Whether an appearance is general or special does not depend upon the form of the pleading, but upon its substance. If a defendant invokes the judgment of the court upon any question, except that of the power of the court to hear and decide the cause, his appearance is general. Haynes, Adm'x, v. City Nat. Bank of Lawton et al., 30 Okla. 614, 121 P. 182.

2. Same--By Urging Nonjurisdictional as Well as Jurisdictional Questions, Defendant Held to Have Entered General Appearance and Waived Defects in Process.

The defendant, by pleading that the facts stated in the petition did not constitute a cause of action within the Jurisdiction of the court, and that no issue could be joined upon the facts attempted to be alleged in the petition, and that the court was wholly without jurisdiction of the subject-matter, and praying that the cause be dismissed for want of jurisdiction entered a general appearance, and thereby waived all defects in the summons and service of the summons. It was error to quash the summons and set aside the service after the defendant had entered a general appearance.

Error from District Court, Oklahoma County; Wyley Jones, Judge.

Action by James W. Jameson against Albert L. Harvel and another. From order dismissing action as to defendant Harvel, plaintiff appeals. Reversed.

O. T. Shinn, for plaintiff in error.

G. A. Chappel, for defendants in error.

ANDREWS, J.

¶1 Plaintiff in error, hereinafter referred to as plaintiff commenced this action in the district court of Oklahoma county against the defendants in error, hereinafter referred to as defendants, by filing his petition and causing the summons to issue to Oklahoma county for the defendant Mary E. Jameson and to Kay county for the defendant Albert L. Harvel. Personal service was had upon each of the defendants.

¶2 The petition contained three causes of action separately stated and numbered, the first of which was against both of the defendants, and the second and third of which were against the defendant Albert L. Harvel. The first cause of action was for divorce, and alleged that Albert L. Harvel had been guilty of improper practices with Mary E. Jameson, the details of which are unnecessary to state. The second and third causes of action were for alienation of affection.

¶3 It appears that divorce has been granted plaintiff from the defendant Mary E. Jameson, and that issue is not before this court.

¶4 The defendant Albert L. Harvel filed an instrument denominated, "Special Appearance and Denial of Jurisdiction and Motion to Strike out and Dismiss plaintiff's Second and Third Causes of Action," which reads as follows:

"Comes now the defendant Albert L. Harvel, appearing specially and solely for the purpose of pleading to the jurisdiction of the court in the action brought by the plaintiff, Charles W. Jameson, as against the defendant Albert L. Harvel, and denies that this court has any jurisdiction of the person of the said defendant, Albert L. Harvel, and to move the court to strike and dismiss the plaintiff's second and third causes of action for the following reasons, to wit:

"1. That the defendant Albert L. Harvel is a nonresident of Oklahoma county, state of Oklahoma.

"2. That the summons in this cause was served on Albert L. Harvel, in Kay county, state of Oklahoma, by the sheriff of Kay county, state of Oklahoma, in person on the 8th day of February, 1927.

"3. That this court has no jurisdiction of the subject-matter of this action against this defendant, Albert L. Harvel.

"4. That this alleged action against the defendant Albert L. Harvel is not one of the actions enumerated by the statutes of the state of Oklahoma in which summons may be properly issued to and served in another county.

"5. That this court is entirely without power or authority to issue summons in this kind of an action against the defendant Albert L. Harvel to another county than that in which the action was commenced.

"6. That the issuing and serving of summons as was done in this case against the defendant Albert L. Harvel does not give this court jurisdiction of the person of this defendant Albert L. Harvel.

"7. That there is a misjoinder of actions in this case made for the sole purpose of giving this court jurisdiction of the defendant Albert L. Harvel: That the defendant Albert L. Harvel is in no wise interested in the alleged cause of action as between the plaintiff and defendant Mary E. Jameson, which is an action for divorce, and the defendant Mary E. Jameson is in no wise interested in the pretended second and third causes of action nor the results thereof, as against the defendant Albert L. Harvel, which is an action for damages alienating wife's affections: That the defendant Albert L. Harvel is not now, was not, at the time this suit was filed, and never has been a resident of Oklahoma county, Okla. That at the time summons in this cause was served upon him, A. L. Harvel, by the sheriff of Kay county, Okla., in that county, he was and has been for years continuously preceding, a resident of the county of Kay, Okla., and that the second and third actions as against this defendant Albert L. Harvel are transitory, and must be brought in the county where the defendant Albert L. Harvel resides, or may be summoned, as under the statutes of Oklahoma provide: That the misjoinder of actions was made for the purpose and only purpose of taking undue advantage of the defendant Albert L. Harvel, and is an imposition upon the court and a fraud upon justice.

"Wherefore, the defendant Albert L. Harvel asks that this action be dismissed in so far as it has sought to charge him, and for his costs."

¶5 This instrument, though denominated a special appearance, is in fact a general appearance.

"Whether an appearance is general or special does not depend upon the form of the pleading, but upon its substance. If a defendant invokes the judgment of the court upon any question, except that of the power of the court to hear and decide the cause, his appearance is general." Haynes, Adm'x, v. City Nat. Bank of Lawton et al., 30 Okla. 614, 121 P. 182.

See, also, Edmondston v. Porter, 65 Okla. 18, 162 P. 692, and Webster v. Crump. 117 Okla. 244, 246 P. 423.

¶6 This pleading invoked the judgment of the court. It required the court to determine whether or not it had jurisdiction of the subject-matter of the action. It required the court to determine whether or not there was a misjoinder of causes of action. Those matters could be determined by the court only after an examination of the record.

¶7 The issue in this case is determined by the rule stated in Webster v. Crump, supra, wherein it was said:

"It is the settled rule in this state that where a defendant denies the jurisdiction of the court over his person, he may, by special appearance, first present that single question; but where he joins with the jurisdictional question other questions involving the merits of the action, and asks for affirmative relief, he thereby waives all defects in the summons and the service of the summons, and enters a general appearance. Welch v. Ladd, 29 Okla. 93. 116 P. 573; Nichols & Shepard Co. v. Baker, 13 Okla. 1, 73 P. 302; Rogers v. McCord-Collins Mer. Co., 19 Okla. 115. 91 P. 864; Lookabaugh v. Epperson, 28 Okla. 472, 114 P. 738; City Nat. Bank v. Sparks, 50 Okla. 648, 151 P. 225; C., R. I. & P. Ry. Co. v. Austin, 63 Okla. 169, 163 P. 517. Whether an appearance is general or special does not depend upon the form of a pleading, but upon its substance. Haynes v. City National Bank, 30 Okla. 614, 121 P. 182.

"The defendant, by pleading that the facts stated in the petition did not constitute a cause of action within the jurisdiction of the court, and that no issue could be joined upon the facts attempted to be alleged in the petition, and that the court was wholly without jurisdiction of the subject-matter, and praying that the cause be dismissed for want of jurisdiction, entered a general appearance, thereby waived all defects in the summons and service of the summons. It was error to quash the summons and set aside the service after the defendant had entered a general appearance."

¶8 In Bilyeu v. Branson, Adm'r, 86 Okla. 212, 206 P. 898, there was a motion to dismiss the second cause of action upon the ground that the action was improperly joined with an action with reference to real estate and was so joined in order to bring the defendant into a court which had no jurisdiction over him and for the purpose of trying a matter...