Mutzig v. Hope
| Citation | 176 Or. 368,158 P.2d 110 |
| Parties | MUTZIG <I>v.</I> HOPE |
| Decision Date | 24 April 1945 |
| Court | Supreme Court of Oregon |
1. Where service of summons on defendant is a nullity and he enters no general appearance, default judgment against him is absolutely void for want of jurisdiction of his person and may be vacated at any time on defendant's motion or court's own motion, and defendant's delay in moving or failure to move to vacate judgment cannot validate it.
Venue
2. An action for rent was "transitory" as founded on privity of contract, not privity of estate, so as to authorize commencement and trial thereof in county wherein defendant resided or any county designated in complaint if defendant resided outside state.
Process
3. The statute authorizing plaintiff to issue as many original summonses as he may elect and deliver one of them to sheriff of each county in which service on any defendant is desired permits issuance of more than one original summons for single defendant, sued in county of his residence, if plaintiff is uncertain as to whether defendant is to be found in such county or another county, and delivery of such summonses to sheriffs of different counties, so that defendant may be served where found, though not found in county wherein suit was filed.
Process
4. When suit is brought in proper county, personal service of summons may be had on natural person as defendant in any other county wherein he may be found, and plaintiff need not resort to substituted service on defendant residing in county of venue, but found in another county.
Courts
5. Substituted service of process is not according to course of common law, and record must affirmatively show fact authorizing such service to establish validity thereof.
Process
6. A summons is not "process" but mere notice informing defendant of action and need to answer complaint within specified time.
Process
7. In suit properly filed in county of defendant's residence, summons may be served on defendant in another county wherein he is found.
Process
8. In nontortious transitory action for rent against one residing either in county of venue or outside state, court acquires jurisdiction of defendant by personal service of summons in another county wherein he is found.
Venue
9. Statutes relating to venue are procedural merely and not jurisdictional in strict sense.
Venue
10. A court having general power to take cognizance of subject matter of action is not deprived of jurisdiction thereof by fact that venue is laid in wrong county, if defendant does not object or move in apt time to change venue to proper county.
Venue
11. Since venue statutes generally relate to procedure, not jurisdiction, defendant's right to be sued in particular county is mere personal privilege, which he may waive, where court has general jurisdiction of subject matter.
Venue
12. Generally, objections to venue are waived by failing to raise question in proper time and manner.
Venue
13. Ordinarily, judgment for plaintiff in action brought in another county than that prescribed by statute is not void, as such defect is one of venue, not of jurisdiction.
Venue
14. The statute authorizing court or judge thereof to change place of trial of action on either party's motion supported by affidavit showing that action was not commenced in proper county applies to transitory, as well as local, actions.
Venue
15. A natural person cannot be sued in county wherein he neither resides nor can be found at commencement of action, unless he is nonresident of state.
Appearance
16. Personal service of summons on defendant vests court with jurisdiction of defendant's person irrespective of any general appearance, which is not indispensable, though sufficient of itself to confer jurisdiction on court.
Venue
17. The right to object to erroneous venue of action is a privilege, exercise of which may determine what court should or should not do, but does not affect its jurisdiction to act.
Courts
18. Jurisdiction over subject matter of action may be acquired by court in which suit is filed even before service of summons on defendant.
Appearance
19. In either transitory or local action involving subject located within state; general appearance by defendant authorizes court to try case on merits, though action be filed in wrong county.
Venue
20. A court cannot make valid order, such as order for change of venue, unless it has jurisdiction.
Process
21. Jurisdiction of defendant's person may be acquired either by service of summons or by general appearance, and court acquires jurisdiction when defendant appears generally, though no service is made or attempted.
Courts
22. A court acquires jurisdiction of defendant's person after personal service of summons on him, though venue of action be improperly laid, as venue statute confers only personal privilege, which must be exercised by defendant, to object to improper venue.
Venue
23. A defendant may exercise his privilege to be sued in proper county by motion to quash summons and dismiss action, which relief will be granted, if no motion for change of venue is authorized by law or neither party has sought such change.
Venue
24. On defendant's motion for change of venue on ground that action was not commenced in proper county, court owes duty to change place of trial to proper county, though defendant has entered general appearance.
Venue
25. Where action at law is not put at issue on fact question, only remedy of defendant claiming that action was not commenced in proper county, is by motion to quash summons and dismiss action or perhaps by plea in abatement, not by motion to change place of trial.
Appearance
26. The only right which defendant waives by general appearance in law action brought in wrong county is right to dismissal of action, as he still has statutory right to change of venue after case is at issue on facts.
Venue
27. An equity court acquires jurisdiction of suit in equity, though brought in wrong county, as venue may be changed on plaintiff's motion after service of summons on defendant, regardless of appearance or waiver of venue by defendant.
Venue
28. A court acquires jurisdiction over defendant's person, whether in action at law or suit in equity, on personal service of summons, though venue be improperly laid, as right to change of venue is only personal privilege, but timely motion by defendant to quash service should be allowed, in absence of waiver of venue or authorized motion by either party for change of venue.
Venue
29. A defendant, failing to file motion to quash summons, served on him personally in another county than that of venue, and dismiss action on ground that it was filed in wrong county, or to appear, answer and move for change of venue after putting case at issue on fact question, but allowing default judgment to be taken, waived privilege of being sued in proper county and should not be permitted to claim that court was without jurisdiction of defendant's person on motion to vacate such judgment 11 years later.
Venue
30. A valid default judgment may be rendered in transitory action, though brought in wrong county.
Venue
31. Improper venue is waived by failure to object thereto in transitory action, as well as in local action affecting title to land.
Courts
32. The jurisdiction of circuit courts of Oregon is state-wide.
Courts
33. The circuit court for Multnomah county had general jurisdiction of subject matter of nontortious transitory action for rent due from lessee of land in another county, and acquired jurisdiction of defendant's person by personal service of summons on him in third county.
Process
34. In nontortious transitory action, of which court has jurisdiction, summons may be served on defendant in another county than that in which action was filed.
Venue
35. In nontortious transitory action for rent, defendant waived objection to improper venue by failing to appear and claim any privileges accorded him by venue statute, so that default judgment was valid.
See 42 Am. Jur. 5
21 C.J.S., Courts § 80
Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, BRAND and HAY, Associate Justices.
Appeal from Circuit Court, Multnomah County.
Action by R.B. Mutzig against Ralph A. Hope for rent. From an order denying defendant's motion to vacate a default judgment, he appeals.
AFFIRMED.
D.T. Bayly, of Eugene, for appellant.
Q.L. Matthews and Charles E. Wright, both of Portland (Pendergrass, Spackman & Bullivant and Christopherson & Matthews, all of Portland, on the brief), for respondent.
This case arises upon a motion of the defendant, Hope, to vacate a default judgment which was rendered against him in a non-tortious transitory action on the ground that the court was without jurisdiction of his person. From an order denying the motion, the defendant appeals.
On December 17, 1931, the plaintiff, Mutzig, brought an action in the circuit court of Oregon for Multnomah county to recover rent owing by defendant as lessee of lands in Deschutes county, Oregon. The complaint was in the usual form. A summons, also in usual form, was issued and the return discloses that service was made upon the defendant personally in Lane county by the sheriff of that county. The defendant failed to appear and after the expiration of twenty days, upon motion of the plaintiff, a default judgment was entered in favor of the plaintiff. The judgment was entered on February 10, 1932. On February 9, 1942, upon motion of the plaintiff, supported by affidavit, and under the provisions of O.C.L.A. § 6-802, an order was duly made and entered in the circuit court for Multnomah county renewing the judgment, directing the reentry thereof, and that execution issue thereon. On October 19, 1943, the defendant filed a special appearance and moved for the cancellation of the judgment. We quote from the motion:
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