Robinson v. Glover

• Decision Date: 27 September 1932
• Docket Number: 7430
• Citation: 244 N.W. 322,60 S.D. 270
• Parties: EDNA M. ROBINSON, Respondent, v. WALTER S. GLOVER, et al., Independent School District of Martin, Garnishee, Appellants.
• Court: South Dakota Supreme Court

60 S.D. 270

244 N.W. 322

EDNA M. ROBINSON, Respondent,

v.

WALTER S. GLOVER, et al., Independent School District of Martin, Garnishee, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Bennett County, SD Hon. J.R. Cash, Judge #7430—Reversed Chas. S. Eastman, G.C. Caylor, Hot Springs, SD Attorneys for Appellants. W.J. Hooper, Gregory, SD Attorney for Respondent. Opinion Filed Sep 27, 1932

CAMPBELL, Presiding Judge.

A previous appeal in this cause was dismissed. See same title, where the facts are quite fully stated. Appellants have now taken and perfected a proper appeal from the final judgment of May 11, 1931, mentioned in the previous opinion and the matter is before us on the merits.

The sole question necessary for decision is whether or not the attempted special appearance of appellants in the court below in fact constituted a general appearance sufficient to give the court jurisdiction over the persons of appellants. Respondent in her brief concedes that jurisdiction had not previously been acquired by proper service of process.

The language of the appearance in question was as follows:

“Special Appearance and Objection to Jurisdiction of Court.

“Come now the defendants in the above-entitled action, appearing specially, and for no other purpose, and object to the jurisdiction of the court to try and determine said action, on the grounds and for the reasons:

“First: That the defendants are non-residents of the State of South Dakota, and as alleged in the complaint in said action, the cause of action arose in the State of Nebraska and said complaint does not state facts sufficient to give the court jurisdiction of the defendants nor of the subject of the action.

“Second: That no legal service of the summons or complaint in this action was ever made or had on the defendants or any of them, either as individual defendants or as persons constituting the Merriman Grain Company, as in said complaint alleged.”

Respondent contends that this appearance, though denominated special, was in fact general because it questioned not only the jurisdiction of the court over the persons of defendants but also the jurisdiction of the court over the subject-matter of the action. Respondent maintains that this challenge to the jurisdiction over the subject-matter is not well taken, and amounts to a voluntary appearance equivalent to the service of process so far as concerns jurisdiction over the person. That the court did in fact have jurisdiction over the subject-matter of this action is apparent beyond possibility of argument.

The matter of special appearance has been before this court in quite a number of cases, among which may be mentioned the following: Benedict v. Johnson (1893) 57 N.W. 66; Mars v. Oro, etc., Mining Co (1895) 65 N.W. 19; Lower v. Wilson (1896) 62 AmStRep 865; Reedy v. Howard (1898) 76 N.W. 304; Houser v. Nolting (1899) 78 N.W. 955; Ramsdell v. Duxberry (1903) 96 N.W. 132; State ex rel v. Duluth, etc., Ry. (1910) 125 N.W. 565; Rogers v. Penobscot Mining Co. (1911) Ann. Cas. 1914A, 1184; Crisp v. Gochnour (1914) 148 N.W. 624; Chicago, M. St. P. Ry. Co. v. McClelland (1917) 163 N.W. 675; Mitchell v. Morgan (1922) 186 N.W. 568. To analyze each case would not be profitable. The general rule deducible therefrom is not dissimilar to that prevailing in other jurisdictions. These cases announce that an appearance for the sole purpose of challenging jurisdiction over the person is special; that if the appearance in fact is special it need not be so christened, and on the other hand, if it amounts to more than a special appearance, calling it a special appearance will not prevent it from being a general appearance; that the test is the relief asked, in determination of which the court will look to the substance rather than the form; and that the real question is whether there is a submission to the power of the court or an active invocation of its power on nonjurisdictional matters.

We seem never to have passed upon the precise question of whether an objection to the jurisdiction of the court over the subject-matter of the action is, in and of itself, sufficient to render an attempted special appearance general. Respondent so maintains and cites 4 CJ 1333, reading as follows: “Broadly stated, any action on the part of a defendant, except to object to the jurisdiction over his person which recognizes the case as in court, will constitute a general appearance. Thus a party makes a general appearance by objecting to the jurisdiction of the court over the subject-matter of the action, whether the objection is made by a motion or by formal pleading.”

Undoubtedly this is the rule in some states. See O’Hara v. Davis (1923) 109 Neb. 615, 192 N.W. 215. See, also, Breen v. Breen (1913) 14 Ohio N.P. (NS) 219. Whether this rule still prevails in Ohio is perhaps open to question. See Rice & Co. v. Pike (1927) 117 Ohio St. 521, 160 N.E. 90. In any event, the rule is not universal. See Parker v. Sup. Ct. (1926) 79 Cal. App. 618, 250 P. 587. In Patton v. Eicher (1920) 85 W.Va. 465, 125, Lynch, J., discussing this question, said:

“However, the defendants did not so restrict their motion, but broadened it to include also a challenge to the jurisdiction of the court over the cause of...