Multnomah Lumber & Box Co. v. Weston Basket & Barrel Co.

• Decision Date: 02 March 1909
• Citation: 54 Or. 22,99 P. 1046
• Parties: MULTNOMAH LUMBER & BOX CO. v. WESTON BASKET & BARREL CO.
• Court: Oregon Supreme Court

99 P. 1046

54 Or. 22

MULTNOMAH LUMBER & BOX CO. v. WESTON BASKET & BARREL CO.

Supreme Court of Oregon

March 2, 1909

Appeal from Circuit Court, Multnomah County; J.B. Cleland, Judge.

Action by the Multnomah Lumber & Box Company against the Weston Basket & Barrel Company. From a judgment for plaintiff defendant appeals. Affirmed.

J.B. Ryan, for appellant.

H.G Platt, for respondent.

MOORE C.J.

This is an appeal by the defendant, a corporation, from a judgment rendered against it, and the question involved is whether the court obtained jurisdiction of the defendant. The return of the sheriff states that the defendant corporation was personally served by him in Multnomah county December 10 1906, by delivering a certified copy of the summons and of the complaint herein to its manager, B.F. Mackall, in person. There was filed in the lower court March 26, 1907, a writing subscribed by the attorneys of the respective parties, whereby the defendant was allowed until January 20, 1907, within which to plead or answer. The defendant having engaged another attorney, the latter appeared specially April 15, 1907, and moved to set aside such service of process, on the ground that it was insufficient to secure jurisdiction of his client. There appear in the transcript certain unidentified affidavits which were evidently filed in support of the motion, and state, in effect: That the defendant was incorporated and exists under the laws of California, in which state it has its domicile and principal office; that it did not have an agency established in Oregon for the transaction of any of its business, or have any property therein; and that on December 10, 1906, its manager was in this state only while passing through it. The motion was denied. The defendant declined further to plead or answer, and judgment was rendered as hereinbefore stated. The journal entry of the judgment states that in response to the service of process the defendant, by its attorneys (naming them), made a general appearance and asked for additional time in which to plead, and it was granted.

The plaintiff's counsel object to a consideration of the sworn statements referred to, on the ground that no bill of exceptions has been sent up, and, such being the case, the affidavits, though included in the transcript, do not constitute any part of the record. These voluntary declarations under oath form the proof which tends to show that the defendant is a foreign corporation, and, like all other evidence, should have been included in a bill of exceptions and transmitted to this court, if they were to be considered. Farrell v. Oregon Gold Co., 31 Or. 463, 49 P. 876; Nosler v. Coos Bay Nav. Co., 40 Or. 305, 63 P. 1050, 64 P. 855; State v. Kline, 93 P. 237. The complaint does not state that the defendant was not created by or under the laws of Oregon. It will be remembered that the judgment order states that the defendant, by its attorneys, "made a general appearance." This narration seems to negative the fact that any reliance was placed on the service of process, but, rather, that dependence was put on such appearance as a means of securing jurisdiction of the person, from which it is reasonably to be inferred that the defendant is a foreign corporation; and it will be treated as such, basing the conclusion upon the recital and not upon the assertions contained in the affidavits, which sworn declarations will be disregarded.

The statute, regulating the power to subject parties to judgments and decrees, contains a clause as follows: "No corporation is subject to the jurisdiction of a court of this state, unless it appear in the court, or have been created by or under the laws of this state, or have an agency established therein for the transaction of some portion of its business, or have property therein; and in the last case only to the extent of such property at the time the jurisdiction attached." B. & C. Comp. § 528. A corporation appears by attorney in all cases. Id., § 1050. A voluntary appearance of the defendant shall be equivalent to personal service of the summons upon him. Id., § 63. A defendant appears in an action or suit when he answers, demurs, or gives the plaintiff written notice of his appearance. Id., § 542. An attorney is a person authorized to appear for and represent a party, in the written proceedings in any action, suit, or proceeding, in any stage thereof. Id., § 1049. An attorney has authority to bind his client in any of the proceedings in an action, suit, or proceeding, by his agreement, filed with the clerk or entered upon the journal of the court, and not otherwise. Id., § 1058. These excerpts from the statute have been given to indicate the method of procedure in the foregoing cases and to show the authority of an attorney to bind his client.

It is not pretended that the attorneys who, by stipulation, secured an extension of time within which to plead or answer, were not empowered to represent the defendant; but it is argued that, to constitute a general appearance which will operate as a waiver of process, it must be manifest that some relief...