Rogers v. Mccord-Collins Mercantile Co.

• Decision Date: 04 September 1907
• Citation: 19 Okla. 115,1907 OK 85,91 P. 864
• Parties: J. M. ROGERS v. MCCORD-COLLINS MERCANTILE COMPANY.
• Court: Oklahoma Supreme Court

1907 OK 85

91 P. 864

19 Okla. 115

J. M. ROGERS v. MCCORD-COLLINS MERCANTILE COMPANY.

Supreme Court of Oklahoma

Decided: September 4, 1907

Syllabus

¶0 1. MOTIONS--Conclusiveness of Adjudication--Motion to Quash Service. Generally, when an order is made denying a motion to quash service of summons, and a final judgment is rendered, an appeal will lie from such judgment, and the ruling arising upon the motion to quash service may be assigned as ground for reversal, and if no appeal is taken, the matter arising on the motion to quash service becomes res adjudicata and a bar to the right of the defendant to raise the same question upon a subsequent motion involving the same subject matter.

2. APPEARANCE--General Appearance--Special. Where a motion is made in which questions are raised which go to the jurisdiction of the court over the parties, and in which questions are also raised which cannot be raised by special appearance but can only be heard upon a general appearance, the parties will be taken and held to have entered a general appearance, and in such case defects in the service of summons will be deemed and held to have been waived, even though such appearance be made after judgment and upon a motion to vacate and set aside such judgment.

Error from the Probate Court of Lincoln County; before Fred A. Wagoner, Probate Judge.

Affirmed.

S. A. Cordell, and J. B. A. Robertson, for plaintiff in error.

S. D. Decker for defendant in error.

PANCOAST, J.:

¶1 This action was brought in the probate court of Lincoln county to recover the stun of $ 127.50. Summons was regularly issued and was served on the 24th day of November, 1904, by leaving a certificate copy thereof, with the endorsements thereon, at defendant's usual place of residence. On the 5th day of June, 1905, the plaintiff appeared specially and moved to quash and set aside the summons and service thereof, for the reason the defendant was not at the time of service a resident of the county or territory. Evidence, was introduced upon this motion, and overruled by the court, and judgment was thereupon rendered as upon default. Following this, on the 15th day of June, 1905, the plaintiff in error filed a motion, supported by affidavits, praying that the judgment rendered on the 5th day of June be set aside, upon the ground that the defendant was a nonresident when service was made, and that the court had no jurisdiction of the person of the defendant. Evidence was introduced upon this motion also, and heard by the court, and after consideration thereof the court overruled the same. Time was given to make a case upon the last order. The case made, however, contains the record of the action of the court upon the motion to quash as well as upon the motion to set aside the judgment, although no time was given to make a case upon the first motion. No extension of time having been given to make a case upon the ruling upon the motion to quash service, the action of the court in that regard can not be considered in this appeal, except in so far as the court mar be apprised of the first action of the court, and in so far as it may be necessary to consider the same in connection with the subsequent orders. It seems, however, from the record, that this motion was heard, and upon the hearing that evidence was introduced and considered, which was held by the court insufficient, and the return of the sheriff and the service was sustained.

¶2 It is insisted by the plaintiff in error that both of these motions ought to have been sustained. There was, however, evidence offered and considered, and we think that the return of the sheriff was sufficient as against the evidence offered by the defendant. The affidavits offered by the defendant are very unsatisfactory. The affidavit of the wife of the defendant was incompetent and could not have been considered by the court. The other affidavits contain conclusion and evidently...