Lausten v. Lausten

• Court: Oklahoma Supreme Court
• Writing for the Court: RUMMONS, C.
• Citation: Lausten v. Lausten, 154 P. 1182, 55 Okla. 518, 1916 OK 71 (Okla. 1916)
• Decision Date: 18 January 1916
• Docket Number: Case Number: 7274
• Parties: LAUSTEN v. LAUSTEN.

1916 OK 71

154 P. 1182

55 Okla. 518

LAUSTEN v. LAUSTEN.

Case Number: 7274

Supreme Court of Oklahoma

Decided: January 18, 1916

Syllabus

¶0 1. APPEAL AND ERROR--Special Appearance--Assigmnent of Nonjurisdictional Errors. Where a defendant files a special appearance objecting to the jurisdiction of the court over his person, in which special appearance only jurisdictional matters are set up, and, after such special appearance is overruled and exceptions saved, appeals to this court, the assigning in his petition in error, filed in this court, of non-jurisdictional errors of the trial court, does not constitute a waiver of the want of jurisdiction in the trial court over his person. Rogers v. McCord-Collins Mercantile Co., 19 Okla. 115, 91 P. 864, not followed.

2. PLEADING--Amended Petition--Notice--Necessity. The filing by a plaintiff, after service or attempted service of summons and before answer, of an amended petition, which is complete in itself and does not refer to or adopt the original as a part of it, operates as an abandonment of the original petition; and where such amended petition sets out a now cause of action and seeks for relief not prayed for in the original petition, notice of the filing thereof to the defendant or his attorney is essential to give the court jurisdiction to render judgment thereon, and a judgment rendered on such amended petition without such notice is void for want of jurisdiction of the person of the defendant.

Norman Barker and Hainer, Burns & Toney, for plaintiff in error.

Everest & Campbell, for defendant in error.

RUMMONS, C.

¶1 On December 18, 1914, this action was commenced by the defendant in error, hereinafter called the plaintiff, in the district court of Washington county against the plaintiff in error, hereinafter called the defendant, for separate maintenance and alimony, and for the custody of the minor children of plaintiff and the defendant. On said day summons was issued in the said cause, returnable on December 28, 1914, requiring the defendant to answer the petition on or before the 18th day of January, 1915. This summons was served by delivering a copy to the defendant, in which copy the defendant was required to answer the petition on or before January 18, 1914. On December 21, 1914, after the issuing and service of the said summons, the plaintiff filed an amended petition in said action. On January 11, 1915, the defendant entered a special appearance in the cause, objecting to the service of summons upon him, which being overruled, he excepted, and made no further appearance. On January 28, 1915, judgment by default was rendered by the court in favor of the plaintiff against the defendant for the sum of $ 30,000 alimony, and restraining and enjoining defendant from transferring or disposing of any of his property, real or personal, until such time as such judgment was fully satisfied. On January 28, 1915, the defendant again appeared specially, questioning the jurisdiction of the court to render the judgment, and moved the court to vacate and hold for naught the said judgment for want of jurisdiction of the person of the defendant. This motion was by the court overruled, to which ruling the defendant excepted, and brings error to this court. The defendant assigns as error the overruling of his special appearance to quash the service of the summons, and the overruling of his motion to vacate and hold for naught the judgment for want of jurisdiction of the person of the defendant. He also assigns as error the permitting of the plaintiff to amend her petition, stating a new and enlarged cause of action against the defendant, without any service of process or notice to the defendant, and making a new and enlarged demand against the defendant, without notice or additional service of process on the defendant. He further assigns as error that the trial court erred in hearing any testimony under the pleadings in said case. He further assigns error in rendering judgment on the pleadings and the testimony because the court was without jurisdiction over defendant, and had no jurisdiction to render said judgment, which was not supported by the evidence, and neither the original petition or amended petition of the plaintiff justified or supported the findings of the trial court in rendering such judgment. It is contended by the plaintiff that the last three assignments of error, briefly set out above, constitute a general appearance by the defendant, and that he thereby waived the want of jurisdiction over his person in the trial court, and that this court is thereby precluded from inquiring into any want of jurisdiction of the trial court over the person of the defendant. This question meets us at the threshold in the determination of this case, and we must consider whether or not a party, appealing to this court from a judgment claimed to be void for want of jurisdiction in the trial court over his person, by filing a petition in error in which he assigns errors committed by the trial court which are not jurisdictional, enters a general appearance in the case and validates and makes binding and effective a judgment which was up to that time void for want of jurisdiction. Counsel for plaintiff rely upon the case of Rogers v. McCord-Collins Mercantile Co., decided by the territorial Supreme Court, and reported in 19 Okla. 115, 91 P. 864. The court there says:

"In the brief of the plaintiff in error in this case, they argue two propositions, which can in no wise be taken advantage of by special appearance, and an appearance in any case which is designated as a special appearance, and in which special appearance propositions are contended for which cannot be taken advantage of by a special appearance, but can only be heard upon a general appearance, the parties will be taken and held to have made a general appearance. Counsel argue, upon pages 10 and 11 of their brief, that the judgment was rendered without testimony; also that the petition was not subscribed by the plaintiff in error, and for this reason the court erred in rendering judgment; also the service was made on Thanksgiving Day. The first two of these propositions are not matters that can be considered under the head of a special appearance. They are matters that do not pertain to the jurisdiction of the person, and the defendant, having presented these two matters to the court, will be deemed to have entered a general appearance in the action, and, having entered a general appearance, all matters affecting the service are waived, and the court will be held to have jurisdiction of the person of the defendant."

¶2 This case is the only Oklahoma case we have been able to find touching upon the question of general appearance in the Supreme Court as a waiver of jurisdiction. While it has been cited repeatedly by this court on the proposition that a motion designated as a special appearance in which nonjurisdictional questions are raised is in fact a general appearance, we are convinced the language we have quoted above is a dictum not necessary for the decision of the case in which the opinion was rendered. The question of jurisdiction in that case was a question of fact; the sheriff's return showing service upon the defendant at his usual place of residence, and the defendant contending that at the time of the service he was a nonresident of the county and territory. The court, in determining the case before considering the question of the matters argued in the briefs, says:

"It is insisted by the plaintiff in error that both of these motions ought to have been sustained. There was, however, evidence offered and considered, and we think that the return of the sheriff was sufficient as against the evidence offered by the defendant. The affidavits offered by the defendant are very unsatisfactory. The affidavit of the wife of the defendant was incompetent and could not have been considered by the court. The other affidavits contain conclusion and evidently appeared to the court as evasive and unsatisfactory."

¶3 The court further says:

"This same question, having been presented to the court upon the motion to quash service, became res adjudicata, and the court would have been justified in overruling the motion upon that ground, if none other."

¶4 So it will be seen that the territorial Supreme Court, before arriving at a consideration of the effect of the arguing of nonjurisdictional questions in the brief, had concluded that the judgment of the trial court was right upon the facts, and was correct for the reason that the question determining it had become res adjudicata. In the case of Huston v. Scott, 20 Okla. 142, 94 P. 512, 35 L.R.A. (N. S.) 721, the court says:

"The declaration of law made in the quotation was clearly obiter dictum: 'Where a judge who writes the opinion of the court expresses a view upon any point or principle which he is not required to decide, his opinion as to such point or principle is obiter dictum.' Hart v. Stribling, 25 Fla. 435, 6 So. 455; L. Bucki & Son Lumber Co. v. Fidelity & Deposit Co., 109 F. 393, 400, 48 C.C.A. 436: 3 Words and Phrases, p. 2051.

"So, when the learned jurist, Justice McAtee, speaking for the court, made the finding of fact 'or that Martin had any knowledge of the pendency of any suit in any court touching the property, nor is there any proof in the case that the lands in question were the subject of any suit,' there was created a condition under which he was not required to decide the legal question involved, and the holding is obiter dictum, and not binding on this court."

¶5 We therefore conclude that the holding which we have quoted in the case of Rogers v. McCord-Collins Mercantile Co., supra, is obiter dictum and not authoritative. It seems clear that the assignments of error, "that the trial court erred in hearing any testimony under the pleadings in said cause on the 28th day of January, 1915," and "that the trial...