Pingree Cattle Loan Co. v. Charles J. Webb & Co.

• Decision Date: 22 December 1922
• Parties: PINGREE CATTLE LOAN COMPANY, a Corporation, Respondent, v. CHARLES J. WEBB & COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

211 P. 556

36 Idaho 442

PINGREE CATTLE LOAN COMPANY, a Corporation, Respondent, v. CHARLES J. WEBB & COMPANY, a Corporation, Appellant

Supreme Court of Idaho

December 22, 1922

SUMMONS - SERVICE - APPLICATION FOR ORDER EXTENDING TIME - APPEARANCE-JURISDICTION.

Where defendant, after denial of its motion to quash service of summons, asked for and was granted time in which to demur or answer, its request for time constituted a general appearance.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action for damages. Judgment for respondent. Affirmed.

Judgment affirmed. Costs awarded to respondent.

S. L Hodgin, for Appellant.

A stipulation extending time in which appellant may appear is not a general appearance sufficient to subject the appellant to the jurisdiction of the court. (2 R. C. L. 328; C. S sec. 7202; Domer v. Stone, 27 Idaho 279, 149 P. 505; Washington etc. Dev. Co. v. Weiser Nat. Bank, 26 Idaho 717, 146 P. 116.)

The test is whether defendant became an actor in the cause. (Merchants Heat & Light Co. v. J. B. Clow & Sons, 204 U.S. 284, 27 S.Ct. 285, 51 L.Ed. 488.)

Peterson & Coffin, for Respondent.

A party appears generally in a cause, where, after adverse ruling on objection to jurisdiction of the court, the party voluntarily asks and obtains from the court an order for enlargement of time in which to answer or demur. (Upper Miss. Trans. Co. v. Whittaker, 16 Wis. 220; Yale v. Edgerton, 11 Minn. 271 (Gil. 184); Payne v. Pullan, 44 Cal.App. 728, 187 P. 127; Security Loan & Trust Co. v. Boston & S. R. Fruit Co., 126 Cal. 418, 58 P. 941, 59 P. 296; McKillip v. Harvey, 80 Neb. 264, 114 N.W. 155; State ex rel. Mackey v. District Court, 40 Mont. 359, 135 Am. St. 622, 106 P. 1098; Elliott & Healy v. Wirth, 34 Idaho 797, 198 P. 757.)

A stipulation between counsel for the respective parties to an action allowing a defendant who has appeared specially in a cause an enlargement of time in which to plead to the merits is a general appearance. (Roth v. Superior Court, 147 Cal. 604, 82 P. 246; California Pine Box & Lumber Co. v. Superior Court, 13 Cal.App. 65, 108 P. 882; Multnomah Lumber & Box Co. v. Western Basket & Barrel Co., 54 Ore. 22, 99 P. 1046, 102 P. 1; C. S., sec. 7202.)

BUDGE, J. McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

Appellant is a corporation organized under the laws of the state of Pennsylvania with its principal place of business at Philadelphia. The respondent is a corporation organized under the laws of the state of Idaho with its principal place of business at Pocatello. The respondent was the owner and holder, by assignment, of a note which was secured by chattel mortgage, covering certain wool purchased by appellant. On November 13, 1920, the respondent commenced an action in the district court of the fifth judicial district against appellant to recover the wool covered by its mortgage or the value thereof. On or about the 4th day of June, 1920, service of summons was had upon one J. L. Jones, an employee of appellant. On September 8, 1920, appellant entered its special appearance by motion to set aside the service of summons, which motion was by the court denied. In the order denying the motion ten days were granted to appellant within which to demur or answer. On September 11, 1920, appellant made application to the court for an extension of time to plead and thereupon the following order was made: "In the above entitled cause, upon application of defendant, and good cause being shown and appearing to the court therefor it is ordered that the defendant be given twenty days in addition to the ten days heretofore granted in which to answer or demur."

Thereafter, and prior to the expiration of the time for demurring or answering, the following stipulation was entered into by the parties: "It is hereby stipulated and agreed by and between counsel for the respective parties hereto, that the defendant, Chas. J. Webb & Company, may have to and including the 10th day of October, 1920, in which to answer, demur or otherwise plead in the above entitled cause."

Prior to the expiration of the time thus granted to demur or answer appellant filed what it termed "Exceptions to the order of the court overruling defendant's motion to quash service of summons." On October 25, 1920, default having theretofore been entered for failure to plead, proof was submitted by respondent in support of the allegations of its complaint and judgment awarded in its favor. This appeal is from the judgment.

The controlling question presented on this appeal is whether appellant's request for the order made by the court on September 11, 1920, was equivalent to a general appearance and vested the court with jurisdiction.

The general rule would seem to be that a party appears generally in a case where, after adverse ruling on objection to the jurisdiction of the court, he voluntarily asks for and obtains from the court an order for enlargement of time in which to demur or answer. To seek and obtain such relief is consistent only with the complete jurisdiction of the court over the party applying for it, and if founded upon such application, the jurisdiction of the court, by reason of want of proper service can no longer be questioned. (Upper Mississippi Transp. Co. v. Whittaker, 16 Wis. 220.) Authority for this rule is found in 4 C. J. 1339, as follows "So an application for an extension of time to plead is a recognition of the jurisdiction of the court over the person and...