Winter v. Union Packing Co.

• Decision Date: 18 February 1908
• Citation: 51 Or. 97,93 P. 930
• Parties: WINTER v. UNION PACKING CO.
• Court: Oregon Supreme Court

93 P. 930

51 Or. 97

WINTER v. UNION PACKING CO.

Supreme Court of Oregon

February 18, 1908

Appeal from Circuit Court, Multnomah County; Alfred F. Sears, Jr. Judge.

Action by Howard Winter against the Union Packing Company. Judgment for plaintiff, and defendant appeals. Reversed.

The defendant is a domestic corporation, having its principal office and place of business in Astoria, Clatsop county. On March 12, 1904, plaintiff commenced an action against it in the justice's court for Portland district, Multnomah county, on a cause of action arising in Clatsop county, and caused summons to be served upon defendant in the latter county. At the time the action was commenced a writ of attachment was issued and levied upon certain personal property belonging to defendant in Multnomah county. On March 14th defendant executed and delivered to the officer making the attachment a redelivery or forthcoming bond, with two sureties, conditioned as provided in section 306, B. & C Comp., and the possession of the attached property was surrendered to it. Thereafter it appeared specially and moved to dismiss the action for want of jurisdiction, because defendant was a resident of Clatsop county, the cause of action arose in such county, and service was made upon it there. The motion was overruled, whereupon defendant filed a plea in abatement, alleging substantially the same state of facts. The plea was stricken out on motion, and defendant declining to appear or plead further, judgment was rendered against it, as prayed for in the complaint. From this judgment it appealed to the circuit court, where the judgment of the justice's court was affirmed, and it now brings the case here for final determination.

A.M Smith, for appellant.

Wm. M. La Force, for respondent.

BEAN C.J. (after stating the facts as above).

It is clear that the judgment appealed from is erroneous, unless the defendant voluntarily submitted itself to the jurisdiction of the justice's court for Multnomah county. A transitory action must be brought against a domestic corporation either in the county where it has its principal office or place of business or in the county where the cause of action arose. Holgate v. O.P.R. Co., 16 Or. 123, 17 P. 859; Bailey v. Malheur Irrigation Co., 36 Or. 54, 57 P. 910. This rule is not disputed by plaintiff; but it is contended that defendant voluntarily submitted itself to the jurisdiction of the justice's court by appearing therein and moving to dismiss, and especially by giving a redelivery or forthcoming bond to secure possession of the attached property. The appearance of the defendant was for the sole purpose of challenging the jurisdiction of the court, and was not, therefore, a general appearance, or equivalent to the service of summons. A defendant may appear specially in an action for the purpose of taking advantage of a defect in the notice or service, or to question the jurisdiction of the court without subjecting himself to its jurisdiction for any other purpose. Kinkade v. Myers, 17 Or. 470, 21 P. 557; Belknap v. Charlton, 25 Or. 41, 34 P. 758. This he may do either by motion, or, where the want of jurisdiction does not appear on the face of the record, by plea in abatement. Brown v. Webber & Trustee, 6 Cush. (Mass.) 560; Gregg v. Sumner, 21 Ill.App. 110. But where a defendant appears and invokes the judgment of the court upon a matter, which presupposes jurisdiction, or asks relief which can only be granted after jurisdiction has attached, his appearance is general, and gives the court jurisdiction of the person whether limited to a special purpose or not. The character of the appearance does not depend upon the form of the motion or pleading, but upon its substance, and the relief sought. Belknap v. Charlton, supra.

The remaining question is the effect of the redelivery bond given by defendant to the officer serving the writ of attachment. There are two bonds provided by statute, by the giving of which a defendant may obtain possession of attached property. One is an undertaking, as provided in section 306, "to deliver it or pay the value thereof to the sheriff, to whom execution upon a judgment obtained by the plaintiff in the action may be issued"; and the other is by an application to the court for the discharge of the attachment upon executing and delivering to such court, or the judge thereof, an undertaking to the effect "that the sureties will pay to the plaintiff the amount of the judgment that may be recovered against ...