Perrine v. Knights Templar's And Masons' Life Indemnity Company

• Decision Date: 07 December 1904
• Parties: JOSEPHINE G. PERRINE v. KNIGHTS TEMPLAR'S AND MASONS' LIFE INDEMNITY COMPANY
• Court: Nebraska Supreme Court

101 N.W. 1017

71 Neb. 273

JOSEPHINE G. PERRINE v. KNIGHTS TEMPLAR'S AND MASONS' LIFE INDEMNITY COMPANY

Supreme Court of Nebraska

December 7, 1904

REVERSED.

OLDHAM C. AMES, C., concurs. LETTON, C., not sitting.

OPINION

OLDHAM, C.

This is a rehearing. The former opinion is found, ante, p 267. The case is fully stated in that opinion. It is now urged that the objections raised by the defendant in error in the court below were to the jurisdiction of the court over the person of the defendant, and nothing more, because the grounds assigned relate alone to the jurisdiction of the person. The pleading filed in the court below states, "Comes now specially above named defendant for the sole purpose of objecting to the jurisdiction of the court, and for no other purpose, and submits that the court is without jurisdiction of the subject matter or of the person of the defendant for the following reasons"; whereupon the reasons are set forth, ten in number. We are now urged to disregard the challenge therein made to the jurisdiction of the subject matter and treat it as surplusage. Our duty in this matter depends upon whether or not, under the "reasons assigned," there could have been anything considered by the court except the sole question of jurisdiction over the person of the defendant; not upon what was considered, but what might have been properly considered and determined by the court. We have taken our code from Ohio, and the practice of that state is analogous to ours. In Smith v. Hoover, 39 Ohio St. 249, the court said:

"The appearance of a defendant in court for the sole purpose of objecting, by motion, to the mode or manner in which it is claimed that jurisdiction over his person has been acquired, is not an appearance in the cause, or a waiver of any defect in the manner of acquiring such jurisdiction; while, on the other hand, the appearance for the purpose of contesting the merits of the cause, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended such waiver or not. In respect to this question, an important distinction is made between an objection to the jurisdiction of the subject matter of the suit, and of the person of defendant, although complete jurisdiction in the court to hear and determine the action is not acquired unless the court has jurisdiction over both the subject matter and the person. An objection to jurisdiction over the subject matter is a waiver of objection to the jurisdiction of the person, while an objection to the jurisdiction of the person is a waiver of nothing."

With these considerations in view we turn to the "reasons assigned":

"5. T...