London-Glasgow Development Co. v. Powers
| Decision Date | 20 March 1909 |
| Docket Number | Civil 1057 |
| Citation | 100 P. 454,12 Ariz. 162 |
| Parties | LONDON-GLASGOW DEVELOPMENT COMPANY, a Corporation, and J. W. BOOTH, T. A. STEWART, JOSEPH LANDON and W. P. WEBBER, Defendants and Appellants, v. FRANK POWERS and JOSEPHINE POWERS, Plaintiffs and Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell Judge. Appeal dismissed.
The facts are stated in the opinion.
Frank H. Hereford, for Appellants.
The allegations of appellants' plea to the jurisdiction of the court below have not been denied and therefore stand confessed.
A resident of another state who has in good faith come into this territory to give evidence as a witness in a case here is exempt from service of a summons in a civil action against him while he is thus in attendance as a witness, and for a reasonable time thereafter in which to return home. Brooks v. Farwell, 4 F. 166, 2 McCrary, 220; Kauffman v. Kennedy, 25 F. 785; Bolgiano v Gilbert-Locke Co., 73 Md. 132, 25 Am. St. Rep. 582, 20 A. 788; Sherwin v. Gundlach, 37 Minn. 118, 33 N.W 549; Christian v. Williams, 35 Mo.App. 297; Malloy v. Brewer, 7 S.D. 587, 58 Am. St. Rep. 856 64 N.W. 1120; Atchison v. Morris, 11 F. 582, 11 Biss. 191; Small v. Montgomery, 23 F. 707.
It will doubtless be contended by appellees, as it was in the court below, that appellants have waived their plea of jurisdiction because they filed with it a general demurrer and an answer to the merits.
This question was passed upon by the supreme court of the United States in the case of Roberts v. Lewis, 144 U.S. 653, 12 S.Ct. 781, 36 L.Ed. 579, in construing the statutes of the state of Nebraska, which are shown by the opinion of the court to have been identical with those set out in paragraphs 1353, page 440, and 1342, page 437 of our statutes. The case of Linton et al. v. Heye, 69 Neb. 450, 111 Am. St. Rep. 556, 95 N.W. 1040, and Hurlburt v. Palmer, 39 Neb. 158, 57 N.W. 1019, are even more explicit in setting out these statutes.
The statutes of the territory of Arizona expressly authorize the setting up of the plea to jurisdiction in the answer as defined in paragraph 1350. Appellee was required by the statutes of Arizona to make his plea to the jurisdiction "of the person" in his answer in abatement or in bar of the action or by demurrer. It was this answer defined by paragraph 1350 which appellant filed in the lower court.
A plea to the merits which expressly avers that it is filed subject to the plea to the jurisdiction and the traverse of the return of service already filed does not admit jurisdiction or waive the traverse. Kahn v. Southern Bldg. & Inv. Assn., 115 Ga. 459, 41 S.E. 648.
Eugene S. Ives, and S. L. Pattee, for Appellees.
If the answer of the defendants amounts to a general appearance, they have waived the claimed exemption from service of process, notwithstanding they protest in their answer that they are appearing specially. Crawford v. Foster, 84 F. 939, at page 941, 28 C.C.A. 576.
The order sustaining the plea to the jurisdiction is appealable.
-- An examination of the record discloses that no final judgment in this case was entered in the court below. A plea to the jurisdiction of the court over the persons of the defendants was overruled by the trial court, and it is from this order that the defendants have attempted to appeal without waiting for any further disposition of the case to be made. By paragraph 1493, Civil Code of 1901, our jurisdiction is limited upon appeal to the review of final judgments rendered by the district courts in civil case...
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