Wm. Cameron & Co. v. Consolidated School Dist. No. 1 of Kiowa County
| Decision Date | 22 September 1914 |
| Docket Number | 3539. |
| Citation | 143 P. 182,44 Okla. 67,1914 OK 454 |
| Parties | WM. CAMERON & CO. ET AL. v. CONSOLIDATED SCHOOL DIST. NO. 1 OF KIOWA COUNTY ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A defendant, who has objected to the jurisdiction of the court over his person, may, after his objection has been overruled in any manner defend against the action without waiving his objection; but if he does more and, aside from his defense voluntarily demands affirmative relief in the same action and thus invokes the jurisdiction of the court in a matter unnecessary to his defense, he will be deemed to have waived such objection.
Commissioners' Opinion, Division No. 1. Error from District Court, Kiowa County; James R. Tolbert, Judge.
Action by Wm. Cameron & Co. against the Consolidated School District No. 1 of Kiowa County, Okl., Link Cowen and Jack Kahoe, doing business under the firm name of Cowen & Kahoe or Kahoe & Cowen, Commerce Trust Company, a corporation, C. T. Herring Lumber Company, a corporation, for debt against said Cowen & Kahoe individually and as such copartners, and for foreclosure of materialman's lien against said School District, as owner, and against C. T. Herring Lumber Company as claimant; and cross-petition for similar relief against same parties by said C. T. Herring Lumber Company. Judgment for Wm. Cameron & Co., and also for C. T. Herring Lumber Company, against Link Cowen, but denying their several claims of lien, from which they appeal. Link Cowen filed cross-petition in error, presenting the question of jurisdiction of his person. Judgment affirmed.
O. B. Reigel, of Snyder, for plaintiff in error Wm. Cameron & Co.
Hays & Hughes, of Hobart, for plaintiff in error C. T. Herring Lumber Co.
Blakeney, Maxey & Miley, of Muskogee, and L. M. Keys, of Hobart, for cross-petitioner in error Link Cowen.
This action was commenced in the district court of Kiowa county, Okl., by Wm. Cameron & Co., a corporation, against consolidated school district No. 1 of Kiowa county, Link Cowen and Jack Kahoe, copartners, doing business under the firm name of Cowen & Kahoe, the Commerce Trust Company, a bonding corporation, of Kansas City, Mo., and C. T. Herring Lumber Company, a corporation, to recover of Link Cowen and Jack Kahoe, and Cowen & Kahoe, copartners, who had constructed a school building for said school district, and said Commerce Trust Company, as sureties on the bond of said Link Cowen and Jack Kahoe, and Cowen & Kahoe, the price of material furnished them and used in such building, amounting to $566.15, also to foreclose an alleged lien upon such building and, in this action, to deny and bar any claim of right any defendant might have affecting the same property. The C. T. Herring Lumber Company filed a similar petition against Link Cowen and Cowen & Kahoe for $525.25 and to foreclose a similar lien upon the same property.
Neither Cowen, Kahoe nor the Commerce Trust Company resided or were found in Kiowa county. The plaintiff's right to sue in that county was wholly dependent upon the fact that said school district and C. T. Herring Lumber Company might be found and summoned therein.
The plaintiff and said C. T. Herring Lumber Company each recovered judgment for the amount of its claim against Link Cowen; but judgment was denied them against the Commerce Trust Company; and their demand for foreclosure of the lien claimed was also denied. Link Cowen moved to quash service of summons upon him upon the grounds that he was not found or summoned in said Kiowa county, nor a resident of the same,...
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