Sanipoli v. Pleasant Valley Coal Co.

• Decision Date: 14 September 1906
• Docket Number: 1733
• Citation: 31 Utah 114,86 P. 865
• Court: Utah Supreme Court
• Parties: SANIPOLI v. PLEASANT VALLEY COAL CO

86 P. 865

31 Utah 114

SANIPOLI v. PLEASANT VALLEY COAL CO

No. 1733

Supreme Court of Utah

September 14, 1906

APPEAL from District Court, Salt Lake County; M. L. Ritchie, Judge.

Action by Frank Sanipoli against the Pleasant Valley Coal Company. From a judgment for defendant, plaintiff appeals.

REVERSED.

C. G Gatrell for appellant.

APPELLANT'S POINTS.

A demurrer on the ground that the court has no jurisdiction over the person of defendant, raises only the question whether the defendant is such a person as can be subjected to the process of the court. (Belden v. Wilkinson, 44 A.D. 421; Railroad v. Railroad, 4 Hun 712.)

This being a transitory action, the plaintiff had the right to bring his suit in any county in which he might find defendant, and in which the district court might obtain jurisdiction by service of process or appearance, section 2932, Rev. Stat. 1898, fixing the place of trial of such actions having been repealed. (White v. Railroad, 25 Utah 346; Fields v. Daisy, 26 Utah 373; Gibbs v Gibbs, 26 Utah 382; Sherman v. Droubay, 27 Utah 47; Snyder v. Pike, 83 P. 692.)

"The word 'business' as it is used in the constitution refers only to matters that are pending before the court, and not to criminal acts committed . . . nor to disputes between individuals . . . which may or may not be brought before the court." (Gibbs v. Gibbs, 26 Utah 382.)

And the place of trial must be as provided by statute. Not only may an action be tried in some other county than that in which the cause of action arose, but it may happen by reason of some statutory provision, that it must be tried elsewhere and cannot be tried in the county where such cause of action arose. (Sherman v. Droubay, 27 Utah 47.)

Sutherland, Van Cott & Allison for respondent.

RESPONDENT'S POINTS.

Objection to jurisdiction may be raised by demurrer where it appears upon the face of the complaint that the court has no jurisdiction of the person or subject-matter; but unless want of jurisdiction appears upon the face of the complaint, the objection must be raised by a motion to set aside the summons, where an appearance would confer jurisdiction, or in cases where an appearance would not confer jurisdiction, it may be raised by answer or at the trial, or upon appeal, or by the court itself. (Gurney v. Railroad Co., 37 N.Y.S. 560.)

STRAUP, J. McCARTY, J., concurs. BARTCH, C. J., dissenting.

OPINION

STRAUP, J.

In the complaint filed in the district court of Salt Lake county it was alleged that the defendant was a corporation organized under the laws of this state; that it had its principal place of business and residence in Salt Lake county; and that it was the owner of and operated a coal mine in Carbon county, where, it was alleged, the plaintiff was in its employ and was injured through is negligence. Summons and a copy of the complaint were served on the defendant in Salt Lake county. It demurred to the complaint for want of jurisdiction (1) of the person of the defendant; and (2) of the subject-matter of the action. The question to be decided involves the rulings of the court sustaining the demurrer and dismissing the action. The respondent seeks to uphold the rulings because of the clause in section 5, art. 8, of the Constitution, "all civil and criminal business arising in any county must be tried in such county." The claim made is that the acts of negligence which gave rise to the cause of action having occurred in Carbon county, the district court of Salt Lake county had neither jurisdiction of the subject-matter, nor of the person of the defendant. The interpretation of this provision in the Constitution has given rise to much diversity of opinion in numerous cases before this court. In the case of Konold v. Rio Grande Western Ry. Co., 16 Utah 151, 51 P. 256, where the acts of negligence occasioning personal injury occurred in Emery county, and suit was brought in Weber county, it was held that the district court of Weber county had no jurisdiction of the subject-matter, because the cause of action arose in Emery county, and, under the constitutional provision, the district court of that county had exclusive original jurisdiction of the action. The doctrine announced in the Konold Case was followed and applied in Mosby v. Gisborn, 17 Utah 257, 54 P. 121; Bach v. Brown, 17 Utah 435, 53 P. 991; Condon v. Leipsiger, 17 Utah 498, 55 P. 82; Mining Co. v. McMaster, 19 Utah 177, 56 P. 977, and in Woodward v. Edmunds, 20 Utah 118, 57 P. 848. Later by a number of decisions of this court, that doctrine was overruled, and a construction placed upon the constitutional provision entirely different from the one announced in the Konold Case. ( White v. Rio Grande Western Ry. Co., 25 Utah 346, 71 P. 593; Fields v. Mining Co., 26 Utah 373, 73 P. 521; Gibbs v. Gibbs, 26 Utah 382, 73 P. 641; Sherman v. Droubay, 27 Utah 47, 74 P. 348; Snyder v. Pike, 30 Utah 102, 83 P. 692.) In these cases the constitutional provision has been given an interpretation, to the effect, that it does not grant nor limit jurisdiction, and that it

"Does not change the common-law practice in respect to venue either in civil or criminal actions, but is simply an announcement of the common law upon that subject."

And that transitory actions

"Could be instituted in any jurisdiction in which the defendant was served with process, on the principle that as soon as a person becomes liable in such action to another, either by reason of a tort or contract, the liability attaches to the person and follows him wherever he goes.'"

The holding of these cases is that the constitutional provision does not confer nor restrict jurisdiction, but that the jurisdiction of the district court is as prescribed and defined by section 7, art. 8, of the Constitution, which provides that:

"The district court shall have original jurisdiction in all matters civil and criminal not excepted in this Constitution, and not prohibited by law."

Under these decisions the court had jurisdiction of the subject-matter of the action. To hold with the court below in sustaining the demurrer on the ground of a want of such jurisdiction, and to re-establish the rule announced in the Konold Case, requires the overruling of all the later cases. We have no disposition to depart from the conclusions reached in these cases. The question has been before this court, and engaged its attention during the last ten years, in a dozen or more cases, in which diverse learned opinions have been expressed upon it. The necessity for stability and uniformity in the construction and interpretation of the law requires that the doctrine of stare decisis be applied. Reopening the question at every change in the personnel of the court is fraught with uncertainty and vacillation. We therefore adhere to and reaffirm the rule announced, that the court had jurisdiction of the subject-matter.

It, however, is contended that, even though the court had jurisdiction of the subject-matter, still it had no jurisdiction of the person of the defendant (1) because of what was said in the later cases; and (2) because of the constitutional provision in question. It is claimed that the effect of the decisions in White v. Ry., Gibbs v. Gibbs, and Fields v. Min. Co., is that the court in those cases had no jurisdiction of the person of the defendant had they seasonably raised the question. Such is not the purport of the decisions. With respect to such inquiry, the only question decided was:

"Where the court in which an action is instituted has jurisdiction of the subject-matter, the lack of jurisdiction on other grounds must, under the Code of Civil Procedure, be raised by demurrer or answer or the right to object to the jurisdiction on other grounds is waived by the defendant,"

and inasmuch as each of the defendants there entered a general appearance, by a plea to the merits, he was precluded from raising the question. The effect of these decisions is, not that the court had no jurisdiction of the person in the first instance, and only acquired jurisdiction from a general appearance, but that the defendant's right to raise such a question was waived. It having been determined that the lower court had acquired such jurisdiction from an appearance and a plea to the merits, it was, therefore, wholly unnecessary and immaterial to determine whether the court also acquired such jurisdiction in some other manner. Here, a timely attempt was made to raise the question, but we fail to find anything on the face of the complaint tending to show that the defendant was not subject to the process and jurisdiction of the court.

"Jurisdiction of the person is ordinarily understood to mean the power, obtained by the service of a summons or other proper notice or by an appearance, to render a personal judgment." (17 Am. & Eng. Ency. Law, 1060.)

Courts having jurisdiction of the subject-matter

"Obtain jurisdiction over the parties by the plaintiff appearing and invoking their aid, and over the defendant by his being brought before them, either by voluntary appearance or by process served." (Brown on Jurisdiction [2d Ed.], section 44; Works on Courts and Their Jurisdiction, section 13.)

"The meaning of the clause 'that the court has no jurisdiction of the person' is, that the person is not subject to the jurisdiction of the court, and not that the suit has not been regularly commenced." (Estee's Pleading [4th Ed.], section 3081; Bliss, Code Pleading [2d Ed.], section 405.)

"That ground of demurrer raises only the question whether the defendants are such persons as can be subjected to the process and jurisdiction of the court." (Belden v. Wilkinson, 44 A.D. 420, 60 N.Y.S. 1083.)

The statute (section 2940, Rev. St. 1898) provides that the summons, together...