White v. Johnson

• Decision Date: 03 June 1895
• Citation: 27 Or. 282,40 P. 511
• Parties: WHITE v. JOHNSON.
• Court: Oregon Supreme Court

40 P. 511

27 Or. 282

WHITE v. JOHNSON.

Supreme Court of Oregon

June 3, 1895

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Isam White against Cordelia Johnson, executrix of A.H Johnson, deceased, substituted for A.H. Johnson. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action to recover of A.H. Johnson upon two promissory notes. The complaint was filed April 16, 1894, and on the same day a writ of attachment was issued, which, as shown by the return of the sheriff, was received and served by him on that day by attaching certain real estate, the property of A.H. Johnson, situate in Multnomah county, Or. A summons was also issued, and placed in the hands of the sheriff, who made the following indorsement thereon: "Received April 17 1894. Penumbra Kelly, by C.H. Chance, Deputy. Recorded April 17, 1894. Penumbra Kelly, Sheriff, by P.A. Marquam Deputy." This summons was not served upon A.H. Johnson. On May 29, 1894, plaintiff filed a motion for an order allowing the action to be continued against said Cordelia Johnson, executrix, based upon his affidavit, which, omitting formalities, is in substance as follows: "I, Isam White being first duly sworn, do say that I am the plaintiff in the above-entitled action; that on the 16th day of April, 1894, I commenced an action in the circuit court of the state of Oregon for Multnomah county, against one A.H. Johnson, to recover of said A.H. Johnson a sum of money due me from said Johnson on certain promissory notes, which debt had not been secured by mortgage or pledge of real or personal property, and on said day made and caused to be filed with the clerk of this court a complaint in writing, and duly subscribed and verified; that, immediately after said complaint was filed, I caused a summons to be duly issued in said action, and the same, together with the copy of said complaint, to be placed in the hands of the sheriff of Multnomah county, Oregon, for service on the defendant, A.H. Johnson; that thereafter, and on April 16, 1894, I made in said action an affidavit for a writ of attachment in due form of law, and caused the same to be filed with the clerk of this court, and also made an undertaking for an attachment in due form of law, and caused the same to be filed with said clerk, and thereupon the writ of attachment was in said action duly issued by said clerk under the hand and the seal of said court, directed to the sheriff of Multnomah county, Oregon, and the same was placed in the hands of the sheriff for execution, and was on the 16th day of April, 1894, duly executed by said sheriff at 3 o'clock in the afternoon by attaching lot 7, etc. [ here follows a description of the property attached, and the manner of serving the writ]; that thereafter, on the ______ day of April, 1894, the defendant, A.H. Johnson, died, leaving a will, in which his widow, Cordelia Johnson, is named as executrix; that said will was thereafter admitted to probate by order of the county court of the state of Oregon for Multnomah county, and said Cordelia Johnson was by said last-mentioned court duly appointed the executrix of said estate, and has since qualified as such executrix, and is now acting as the executrix of the estate of said A.H. Johnson, deceased; that said action has not been dismissed, and no appearance has been entered herein by the defendant or by any one on his behalf,"--signed Isam White. On May 31st the court made an order allowing the motion, which, omitting the recital of facts, is as follows: "It is therefore considered, ordered, and adjudged that this action be, and the same is hereby, continued against Cordelia Johnson, as the executrix of A.H. Johnson, deceased; and it is further considered, ordered, and adjudged that a copy of this order and a copy of the complaint in this action be served upon the defendant, Cordelia Johnson, and that she have ten days after such service is made within which to plead to the complaint." This order was served upon Cordelia Johnson on June 2, 1894, and filed on that day. The original summons, entitled "Isam White, Plaintiff, v. A.H. Johnson, Defendant," directed "to A.H. Johnson, defendant," with proof of service, was also filed on the same day. The proof of service was afterwards, on the 27th day of June, 1894, by leave of the court previously had and obtained, amended so as to read as follows: "State of Oregon, County of Multnomah--ss.: I, Penumbra Kelly, do hereby certify that on the 2d day of June, 1894, I served the within summons and the complaint in this action and the annexed order of the court upon Cordelia Johnson, the executrix of A.H. Johnson, deceased, by delivering a true copy of the summons, certified to by me as sheriff, together with a copy of said order, certified by Henry E. Reed, clerk of the circuit court of the state of Oregon for Multnomah county, and with a true copy of the complaint, certified by J.N. Teal, one of the attorneys for the plaintiff, to said Cordelia Johnson in person, at Portland, in Multnomah county, Oregon, on the 2d day of June, 1894. P. Kelly, Sheriff of Multnomah County, by A. Salmon, Deputy." On June 12, 1894, Cordelia Johnson, as such executrix, filed the following motion: "Comes now Cordelia Johnson, as the executrix of the last will and testament of the defendant above named, by R. and E.B. Williams, appearing as her attorneys for the purpose of this motion only, and moves the court to set aside the service of summons in this action and the order of this court continuing this action against the said Cordelia Johnson, as the executrix of A.H. Johnson, deceased, and directing a copy of said order, together with a copy of the complaint in this action, to be served upon the said Cordelia Johnson, and requiring her to plead to the complaint within ten days from the service of said order, for the reason that the service of said order, for the reason that the service of summons is illegal, and that the court had no jurisdiction to make the said order." On June 19, 1894, this motion was overruled by the court, and, the executrix refusing to appear or plead further in said action, a judgment was entered against her, as executrix of the will of A.H. Johnson, deceased, on the 27th day of June, 1894, and the attached property ordered sold to satisfy the same. From this judgment Cordelia Johnson appeals, assigning the following grounds of error: "First. The court erred in making and entering its order continuing the above-entitled action against her, as executrix of A.H. Johnson, deceased. Second. The court erred in overruling her motion to set aside the service of the summons in said action and the order of the court continuing the action against her as executrix, and directing a copy of the order, together with a copy of the complaint, to be served upon her, and requiring her to plead, upon the ground that the service of the summons was illegal, and the court was without jurisdiction to make the order. Third. The court erred in entering default against her as such executrix. Fourth. The court erred in giving and entering judgment against her as such executrix, and in favor of the said Isam White."

E.B. Williams, for appellant.

Wirt Minor, for respondent.

WOLVERTON J. (after stating the facts).

The judgment herein was given and entered against the defendant Cordelia Johnson, as executrix of the last will and testament of A.H. Johnson, deceased, for want of an answer. Her appearance in the action was special only, and for the purpose of having the service of the summons upon her and the order continuing the action set aside and vacated. This she could do without giving the court jurisdiction to render a personal judgment against her. Kinkade v. Myers, 17 Or. 470, 21 P. 557. A judgment by default can only be taken when it appears that the defendant has been duly served with the summons, and has failed to answer the complaint. Hill's Ann.Laws Or. § 249. "Being duly served with summons implies that the defendant has been served with summons in the manner directed by law, in every particular, requiring him to appear in the court of the county where the judgment is taken." Trullenger v. Todd, 5 Or. 38. Has the defendant, Cordelia Johnson, as such executrix, been duly served with the summons in the action, so as to put her in default, she failing to appear generally or to plead to the complaint? In other words, was her substitution and the continuance of the action in her name by the court, and the subsequent service of the summons upon her, entitled in the original action, and directed to A.H. Johnson, together with a copy of the complaint and a copy of the order of the court showing her substitution for the defendant and requiring her to appear and answer, or otherwise plead to the complaint, sufficient in law to require her to appear at the peril of suffering a judgment by default to be entered against her? It is contended by counsel for respondent that the court has jurisdiction to make the order of substitution, basing their contention upon section 62, Hill's Ann.Laws Or., which provides: "From the time of the service of the summons, or the allowance of a provisional remedy, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings,"--and claiming that the issuance of the attachment was an allowance of a provisional remedy, and warranted the court in assuming jurisdiction to make the order. Granting, for the purpose of the examination of this question, that the writ was duly and properly issued, such issuance cannot be so construed as to invest the court with power to control all the subsequent proceedings in the action, as in case of the service of a summons. The jurisdiction acquired by the...