Raymond v. Nix

• Decision Date: 30 July 1897
• Citation: 49 P. 1110,5 Okla. 656,1897 OK 97
• Parties: RAYMOND v. NIX et al.
• Court: Oklahoma Supreme Court

49 P. 1110

5 Okla. 656, 1897 OK 97

RAYMOND v. NIX et al.

Supreme Court of Oklahoma

July 30, 1897

Syllabus by the Court.

1. Where a defendant appears in court, and moves to dissolve the attachment on the merits of the proceedings, such as the insufficiency of the attachment affidavit, he enters a general appearance in the case, and thereby waives all objections to the service on him in said case, and to the jurisdiction of the court over the person of the defendant.

2. An action is commenced when plaintiff files his petition, and causes a summons to issue thereon, or when, in an attachment proceeding, he files an affidavit for publication, which is there after made good by pursuing the requirements of the statute, or where the regularity of the subsequent proceedings is waived by the entry of the defendant's appearance within 60 days.

3. An attachment order may issue at any time after the action is commenced in the manner above stated.

4. While an affidavit for publication should be filed separately from the affidavit for attachment, the supreme court will not hold it error for the trial court to refuse to dissolve an attachment where the affidavit for attachment may be held good also as an affidavit for publication.

5. An affidavit for publication which states defectively, but inferentially, the things required by the statute, is voidable, but not void, and the defects may be cured by management; and where the defendant enters a general appearance in the case without first attacking the service by publication, on the ground of the defect in the affidavit for publication, he waives such defect.

6. An attachment in this territory may be based on both of the grounds that the defendant so conceals himself that a summons cannot be served upon him and that the defendant is a nonresident of the territory.

7. Without expressing an opinion at this time as to whether or not, in an action in a probate court in this territory, lands and tenements of a defendant may be attached, it is held that, even if such property could not be attached in such a proceeding, that part of the order of attachment which directed the sheriff to levy on the lands and tenements of the defendant was surplusage, and void, the order also directing the sheriff to seize the personal property of the defendant.

8. An attachment order is not void because the sheriff is not directed to return it in 10 days, but is directed to "make due return of this order, with your proceedings thereon, when fully executed or discharged."

Appeal from probate court, Pottawatomie county.

Action by Nix, Halsell & Co. against Osie Raymond. From a judgment for plaintiffs, defendant appeals. Affirmed.

B. B Blakeney, for plaintiff in error.

Cotteral & Hornor, for defendants in error in this court.

BIERER J.

Nix Halsell & Co., a partnership engaged in the grocery business at Guthrie, Okl, brought their action in the probate court of Pottawatomie county against the defendant in the name of Osie Griffenstein, but who, the petition alleged, had been married, and whose real name was unknown, to recover an account for goods, wares, and merchandise sold and delivered to her in the sum of $440.51, with interest and costs. An attachment was had, and on the trial of the case judgment was rendered for plaintiffs for the amount of the account interest and costs, the attachment sustained, and the personal property levied on ordered sold to pay the judgment. From this judgment the defendant appeals.

Assignments of error are based on the action of the court in overruling defendant's motion to set aside the service by publication, and also her motion to dissolve the attachment. The petition and other papers hereafter to be noticed were filed in the case on the 18th day of February, 1895, and the attachment order issued on that day. On the 5th day of April, 1895, the defendant filed her motion to dissolve the attachment on numerous grounds, including, as will hereafter be seen, objections to the sufficiency of the attachment affidavit. This was, on the 12th day of April, 1895, overruled, and the motion to set aside the service by publication was not filed until the 4th day of May, 1895. In this latter motion the defendant sought to test the sufficiency of the affidavit for publication because it did not show that the case was one in which service by publication could be had, and objected to the notice because it did not show the nature of the judgment which the plaintiff sought in the action, and because it did not have the seal of the court attached thereto. The motion to discharge the attachment was upon jurisdictional and nonjurisdictional grounds, and, while it stated that the defendant entered a special appearance, it also attacked the attachment proceedings by alleging the insufficiency of the attachment affidavit. This was an objection to the merits of the attachment, and was a general appearance in the action, and the plaintiff thereby waived any objections which she might have relied upon had she objected, and on that sole ground, to the jurisdiction of the court over the person of the defendant. It is well settled, and particularly so under our Code, that when a party attacks a proceeding of a court upon nonjurisdictional as well as jurisdictional grounds he has made a general appearance, no matter what kind of an appearance he may state in his motion he makes; and he thereby waives all jurisdictional defects over his person. Cohen v. Trowbridge, 6 Kan. 385; Burdette v. Corgan, 26 Kan. 102; Gorham v. Tanquerry (Kan. Sup.) 48 P. 916; Mercantile Co. v. Dymont, 2 Okl. 365, 37 P. 1052. In the case of Burdette v. Corgan, supra, the party made a motion to vacate a judgment, the motion being based upon nonjurisdictional as well as jurisdictional grounds. In the opinion, by Mr. Justice Brewer, it is said: "A party cannot come into court, challenge its proceedings. On account of irregularities, and, after being overruled, be heard to say that he never was a party in court, or bound by those proceedings. If he was not in fact a party, and had not been properly served, he can have the proceedings set aside on the ground of want of jurisdiction, but he must challenge the proceedings on that single ground. This is familiar doctrine." The case of Gorham v. Tanquerry, supra, is a stronger case on this question than the one at bar. In that case the party raised an objections to the sufficiency of the service by publication at the same time that he presented his motion to discharge the attachment. In the opinion the court says: "The trial court held that, while the service was not good, the defendants below had, by their motion, waived the service, and had submitted themselves to the general jurisdiction of the court. The ruling meets our approval. A motion made by defendants for the special purpose of contesting the jurisdiction of the court does not waive notice nor confer jurisdiction, but, if he appears for any other purpose, it will be construed to be a general appearance in the case, and to give the court jurisdiction over him. In the early days of Cohen v. Trowbridge, 6 Kan. 385, it was held that a motion grounded wholly or in part upon errors or irregularities aside from the questions of jurisdiction is such waiver as constitutes an appearance. Here the defendants did not confine themselves to questions of jurisdiction, but grounded their motion in part upon errors and irregularities in the proceedings. They invoked the opinion of the court as to whether the affidavit upon which the attachment was based was sufficient." In Mercantile Co. v. Dymont, supra, the defendant Whitlock made a motion to set aside the judgment which had been rendered against him. The overruling of this motion was assigned as error, and in passing upon the question this court said: "Notwithstanding that there was no summons ever issued to Whitlock, and that his name was not mentioned in the service by publication with the other defendants, yet he was one of the defendants in the action, and his appearance in the motion to discharge the attachment was a sufficient appearance for the court to acquire jurisdiction over him, and the rendition of judgment against him was not error." This doctrine is also supported by the case of Gans v. Beasley, 4 N. D. 153, 59 N.W. 719. The defendant must, therefore, be held to have waived any question as to the sufficiency of the service by publication, so far as jurisdiction over her is concerned.

In support of the claim that error was committed in overruling the defendant's motion to dissolve the attachment it is contended that the attachment order was issued before the action was commenced, and that, therefore it was void. Section 190 of the code of Civil Procedure provides "The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property...