Kinkade v. Myers

• Decision Date: 22 April 1889
• Citation: 17 Or. 470,21 P. 557
• Parties: KINKADE v. MYERS.
• Court: Oregon Supreme Court

21 P. 557

17 Or. 470

KINKADE v. MYERS.

Supreme Court of Oregon

April 22, 1889

Appeal from circuit court, Benton county.

(Syllabus by the Court.)

A general appearance waives all questions as to the service of a process, and is equivalent to a personal service.

A special appearance designating the particular purpose for which the party appears limits the appearance to that particular matter.

Where the service of a summons is illegal and fatally defective, a defendant may appear therein specially for the purpose of having such service set aside, and there is nothing in the Oregon Code restrictive of such rights.

J.W Rayburn, for appellant.

John Kelsay, for respondent.

LORD J.

This was an action brought in a justice's court to recover money. After judgment therein a writ of review was sued out in the circuit court, which resulted in the affirmance of such judgment, and the dismissal of the writ. The case involves but one question for our determination. Briefly the facts are these: It is admitted that the service of the summons and complaint, as shown by the constable's return, was insufficient to authorize the court to render judgment against the defendant, if he had not appeared in the action. The record discloses that he appeared specially, and only for the purpose of setting aside the return of the constable as to such service of the summons and complaint, which the justice's court overruled, and, the defendant not appearing further, also, rendered judgment against him for the amount demanded in the complaint and costs and disbursements of the action.

The question then is: Can a party specially appear in an action or other proceeding for the purpose of setting aside the service of the summons or does such appearance waive the failure to properly serve the summons and give the court jurisdiction of the person of the defendant? The contention of the plaintiff is that an appearance for any purpose, special or otherwise, is equivalent to service, and that, although the defendant appeared specially, and without intending to confer jurisdiction of his person, it had the effect to confer jurisdiction, and to authorize the court to render judgment against him. Neither of the cases cited--Mining Co. v Walker, 1 Or. 342, nor Harker v. Fahie, 2 Or. 89--sustain this contention. In the first case the party appeared and offered to file his answer; and in the second there was a voluntary appearance, which was equivalent to service, or waiver of any informality therein. A general appearance waives all questions as to the service of process, and is equivalent to a personal service. Eldred v. Bank, 17 Wall. 551; Meixell v. Kirkpatrick, 29 Kan. 683; Allen v. Coates, 29 Minn. 46, 11 N.W. 132. A special appearance designating the particular purpose for which the party appears, limits the appearance to that particular matter. Here, it was for the specific purpose, and no other, of setting aside the service, because it was illegal, and admitted to be fatally defective. The defendant claims that he had a right to so appear specially, and move to set aside the service of the summons, and that...