Sealy v. Cal. Lum Co. , 19 Or. 94 ( 1890 )

Lord, J.,

delivered the opinion of the court:

This is an action to recover money. The facts out of which the question arises to be determined are these: That on the return of the proof of service as endorsed on the summons, the defendant by its attorneys filed the following motion: “Now comes the defendant, by John A. Gray and Shedden F. Wilson, its attorneys, and appearing specially and for the purposes of this motion only, moves the court to set aside the summons in the above-entitled action, and also the service thereof, for the reason that the said summons and the service thereof are defective and not in accordance with the laws of the State governing the same.” The court overruled the motion, and the defendant then and there excepted. Thereupon the defendant, by its said attorneys, moved the court for leave to answer, which being granted, it filed its answer, to which the plaintiff filed his reply; and after a trial, the verdict and judgment was for the plaintiff, and from which this appeal is taken. The error assigned is in overruling the motion of the defendant to vacate and set aside the summons served therein and the service thereof.

The contention of the defendant and appellant is that its subsequent appearance in the trial of the cause did not waive the error of the trial court in overruling its motion to set aside the service. The argument is, that it is only when the defendant pleads to the merits in the first instance without insisting upon the defects in the service, that such objection can be considered as waived; that when the defendant appears specially and for the purpose of calling the attention of the court to such defects, and the court overrules his objection, and he is thereby compelled to answer to avoid judgment from being taken against him, he will not be deemed to have aban doned his objection to the jurisdiction because he does net submit to further proceedings without contestation. Harkins v. Hyde, 98 U. S. 476. In Lyman v. Milton, 44 Cal. 635, and Kent v. West, 50 Cal. 185, it was beld in tbe one case that a party was entitled to appear specially and move to set aside tbe service of an illegal summons, and in tbe other to set aside tbe service of tbe illegal service of a legal summons; and further, that tbe wrongful refusal of such motion was an error that was not waived by tbe defendant’s subsequent appearance and trial of tbe case.

On tbe other band, tbe contention of tbe plaintiff is that tbe defendant, by its subsequent appearance and trial of tbe cause, waived tbe motion to set aside tbe summons and service thereof as defective and submitted itself and its rights to tbe jurisdiction of tbe court. In Kinkade v. Myers, 17 Or. 471, tbe party appeared for tbe specific purpose and no other of setting aside the service, because it was alleged to be illegal, and it was beld that be might make such special appearance, and that in so doing be did not waive such defects or submit himself to tbe jurisdiction of tbe court. See also Ling v. N. P. R. R. Co., 10 Saw. 19.

But tbe question here presented is, whether, when be appears specially for a specific purpose named and tbe ruling is adverse to him, be can subsequently appear and contest tbe cause at every point without submitting himself to tbe jurisdiction of tbe court. In a word, does not bis subsequent appearance concede jurisdiction, and wave tbe defect in tbe service to which be limited bis special appearance? A general appearance waives all questions as to tbe service of process, and is equivalent to personal service. A special appearance limits tbe appearance to the matter specified; it is for that specific purpose and no other, and contests tbe jurisdiction in limine. To preserve bis status in court, if be has appeared specially and questioned tbe jurisdiction, be must avoid any subsequent act which concedes jurisdiction and invokes tbe judgment of tbe court. A defendant cannot answer tbe complaint and make a full defense on tbe merits without making a general appearance in spite of bis special appearance, and when be does so be invokes tbe judgment of tbe court, and submits himself and bis rights to its jurisdiction, and can no longer be beard to say that it bad no jurisdiction. He cannot figbt bis side of tbe battle on tbe merits under a special appearance. Tbe law will not allow bim to occupy an ambiguous position to avail bimself of its jurisdiction wben tbe judgment is in bis favor, and to repudiate it wben tbe result is adverse to bim. He ought to do one thing or tbe other — either fight it out on tbe line of bis special appearance; or, if be appear and go to trial, accept its incidents and consequences.

According to this view, tbe subsequent appearance- generally of tbe defendant to defend tbe action was equivalent to personal service, cured or waived tbe defect in tbe process or service to which tbe special appearance was limited, and cannot be availed to question tbe jurisdiction.

It may not be amiss, however, to say that T am not entirely satisfied that an answer to tbe merits watives an objection duly made to an illegal service of a summons which is questioned by a special appearance; but it is thought by tbe court that tbe better reason is with those authorities which bold that a party waives bis objections to a defective summons or a defective service of a legal summons whether overruled or not, wben be subsequently appears generally and defends tbe action.

It results that tbe judgment must be affirmed.