Cohen v. Trowbridge ( 1870 )

The opinion of .the court was delivered by

Kingman, C. J.:

These cases are brought to this, court from one action in the district court, each party alleging error. Both cases will be examined together.

2. coKsrireoTmt c?encyeófnotice I. The notice of publication described the land attached, and for the sale of which judgment was prayed, as “ the northeast quarter of section nine, town five, range eighteen.” It is not stated in what county the land lies; nor whether it is in range eighteen east, or west, of the sixth principal meridian, either of which would be in Kansas. The suit was brought in Leavenworth county, where one defendant, Burris, was served with process. The land was attached as the property of Trowbridge in Atchison county.

The notice of publication was defective. The party attempting to bring another before the court by constructive service ought to state with certainty the nature of the judgment claimed. There was no difficulty in doing so in this case. If courts commence refining upon what may be omitted in such notice, the door will be open to endless construction, and possibly to ingenious subterfuges, by which the notice may be made to mislead instead of putting an absent defendant on his guard. It is said in argument that the court will take notice that the country where the land would lie west of the meridian, is wild land, unsurveyed, in an unsettled county. This' fact, if it be one, might be ascertained at the proper office. But this is evidence, and does not “ appear.” If the fact were made to appear by proper evidence, we might consider its value. In the rapid extension of settlements in this state, it would be perilous for any court to say, on its own knowledge, wbat part of the State was unsettled. The district court was right in holding the notice of publication insufficient.

¿ ApimK„_ whMgaierai.01 II. The defendant Trowbridge moved to set aside the judgment and sale, which motion the court granted. By this motion Trowbridge entered on appearance in the action. In Marsden, et al. v. Soper, 11 Ohio St., 503, the judgment was entered without jurisdiction of the person of the defendant. The defendant moved to vacate the judgment, which motion was after-wards dismissed. The grounds of the motion did not appear in the record in the supreme court, yet the court held that by the motion such an appearance was made as waived the objection to the jurisdiction, giving as a reason therefor that “ if the motion was based on an alleged want of jurisdiction, it would be no such appearance, or waiver; but if it was grounded upon irregularity, or error in the judgment alone, aside from the question of jurisdiction, it would constitute such waiver.” In Massachusetts a similar ruling was made. After the decision of the ease, and before judgment was entered, the defendant made a motion as to the taxation of costs. This was held to be an appearance in the case for all purposes. The court laid down the rule as follows: “ It is well settled that a defect of service is waived by a general appearance of defendant, or,-if he appears for any other purpose than to object to the sufficiency of the service.” 1 Allen, 371. And such is the current of decisions, some of which are referred to in the briefs.

Tested by this doctrine, Trowbridge, by his motion, entered an appearance in this case. The 5th, 6th, 7th and 8th grounds of his motion go to the merits of the-ease, and to questions of irregularity in the proceedings, other than jurisdictional ones; therefore it must be held to be such an appearance as waived the defective notice of publication.

4. mmeioanswer íowcd. III. The plaintiff, when the motion to set aside the judgment and order of sale was- sustained, moved for default and judgment against defendant Trowbridge. The court sustained the motion, and judgment was entered against him over his objections. We are clear that defendant was entitled to time to answer. It was neither reasonable nor legal to file an answer while the judgment was still standing against him on the record. It would have been impertinent to have done so. As the case stood, there was nothing to answer until the judgment was vacated. Nor could the defendant be expected to stand with his answer ready. It might never be required. While the motion to vacate was a waiver of the defective service, it was not a waiver of all defendant’s rights.

For this reason the judgment is reversed, with directions to peimit an answer to be filed, and such further proceedings thereon taken as shall be in accordance with law.

All the Justices concurring.