State v. District Court of Fourteenth Judicial Dist. in and for Meagher County

• Decision Date: 16 July 1927
• Docket Number: 6173.
• Parties: STATE ex rel. v. DISTRICT COURT OF FOURTEENTH JUDICIAL DIST. IN AND FOR MEAGHER COUNTY et al. BINGHAM
• Court: Montana Supreme Court

257 P. 1014

80 Mont. 97

STATE ex rel. BINGHAM v. DISTRICT COURT OF FOURTEENTH JUDICIAL DIST. IN AND FOR MEAGHER COUNTY et al.

No. 6173.

Supreme Court of Montana

July 16, 1927

Original application by the State of Montana, on the relation of Minnie H. Bingham, for a writ of supervisory control to the District Court of the Fourteenth Judicial District in and for the County of Meagher, and Hon. A. J. Horsky, Judge presiding. Proceeding dismissed.

C. A Spaulding, of Helena, for respondents.

MATTHEWS J.

Original application for writ of supervisory control by the state on relation of Minnie H. Bingham against the district court of the Fourteenth judicial district in and for Meagher county and A. J. Horsky, judge presiding. Demurrer to petition sustained and proceeding dismissed.

The petition of Minnie H. Bingham, relatrix, recites that in March, 1927, an action was pending in the district court of Meagher county in which she, as one of the defendants, had filed a separate answer to which the plaintiff had demurred and had noticed a motion to strike a portion thereof; that the local judge had been disqualified, and Judge Horsky, of the First judicial district, had been called in and had assumed jurisdiction of the action. It is then shown by the petition that on March 17, 1927, Judge Horsky, at chambers in the First judicial district and on the ex parte application of plaintiff, made an order granting the plaintiff leave to file an amended and supplemental complaint in the action, and that, pursuant to the order, such pleading was filed and served upon counsel for relatrix, whereupon counsel served and filed a notice of motion to strike the amended and supplemental complaint from the files, and at the same time filed and served a demurrer thereto. It further appears from the petition that the motion to strike was argued before Judge Horsky at Helena and by him overruled, and that the demurrer was set down for hearing at White Sulphur Springs the county seat of Meagher county, on the 31st day of May, 1927, on which day relatrix filed her petition and made application to this court for a writ of supervisory control. On the showing made an order was issued and served upon Judge Horsky requiring him to appear before this court on June 10, 1927, and show cause, if any he had, why his orders made in the premises at Helena should not be vacated and the amended and supplemental complaint stricken from the files. On the return day the judge appeared by counsel and demurred to the petition and, at the appointed time, the matter was argued and submitted. The demurrer to the petition presents the sole question of the effect of the demurrer of relatrix to the amended and supplemental complaint.

1. The objection that the presiding judge had no authority to make the orders complained of outside of the county in which the action was pending and without notice to the defendants, like an objection to a defective service of summons, challenges the jurisdiction of the court over the person of the defendant, may be waived, and is saved only by appearing specially for the purpose of urging it. Shilling v. Reagan, 19 Mont. 508, 48 P. 1109; Hinderager v. MacGinniss, 61 Mont. 312, 202 P. 200.

2. The filing of her motion challenging the jurisdiction of the court to make the orders complained of constituted a special appearance only and extended the time for making her appearance on the merits until the motion was determined (section 9322, Rev. Codes 1921; Missoula Belt Ry. Co. v. Smith, 58 Mont. 432, 193 P. 529), and having so appeared, counsel was required to do nothing further until the court ruled upon his motion except to "keep out of court for all other purposes" (Hinderager v. MacGinniss, above; Gravelin v. Porier, 77 Mont. 260, 250 P. 823).

3. The filing of a demurrer constitutes a general appearance, vesting the court with jurisdiction over the person of the demurrant (McKiernan v. King, 2 Mont. 72; Butte Butchering Co. v. Clarke, 19 Mont. 306, 48 P. 303), and operates as a waiver of the objection to such jurisdiction ( Sanders v. Farwell, 1 Mont. 599; Collier v. Ervin, 3 Mont. 142; Smith v. Franklin Fire Ins. Co., 61 Mont. 441, 202 P. 751; Hinderager v. MacGinniss, above).

4. When counsel appeared generally for his client, though he was not required at the time to do so, he waived her objection to any defects in the pleading attackable...