St. Louis & San Francisco Railroad v. Hale , 109 Tex. 251 ( 1918 )

This writ of error was granted because it appeared to the court that there probably was no proper service of citation on plaintiff in error.

Two days before the plaintiff in error, a foreign railroad corporation, moved to quash the service of citation, it filed the following motion:

"S.T. Hale vs. St. L. S.F.R.R. Co. In 15th District Court, Grayson County. Now comes the defendant and moves the court for an order requiring plaintiff to give security for costs.

Head, Smith, Hare Head, Attorneys for Defendant."

In our opinion, this motion operated as a voluntary appearance by plaintiff in error and waived any defect in the service.

The motion to require the plaintiff to give security for the costs obviously implied that the defendant had an interest in the adjudication to be made with respect to such costs. That interest could arise, in the absence of valid service of citation, only from the defendant's voluntary appearance: for the court would otherwise have lacked jurisdiction to adjudge costs to or against defendant. Hardy v. Beaty, 84 Tex. 569; York v. Texas,137 U.S. 21. Having come into the case for a purpose entirely inconsistent with lack of jurisdiction by the court over it, the defendant, in effect, confessed that jurisdiction and can not be allowed to thereafter deny same. Alderson v. White, 32 Wis. 312.

It seems to be almost uniformly held that a general appearance is entered whenever the defendant invokes the judgment of the court, in any way, on any question other than that of the court's jurisdiction, without being compelled to do so by previous rulings of the court sustaining the jurisdiction. 4 Corpus Juris, p. 1339; 2 Enc. Pl. Pr., 637; Rogers v. Penobscot Mining Co., 28 S. Dak., 72, Ann. Cas. 1914A, 1187, 1190n; Lumber Co. v. Lance, 50 W. Va. 643; Foohs v. Bilby (Ark.), 129 S.W. 1106; Healy v. Aultman, 6 Neb. 351. It is so held by the Supreme Court of the United States. Laing v. Rigney, 160 U.S. 544; Merchants Heat L. Co. v. Clow, 204 U.S. 289.

The above rule has not only been announced and enforced in this State (Mortgage Co. v. Briggs, 41 S.W. 1039; St. Louis S.F. Ry. Co. v. Kiser, 136 S.W. 854; Baugh v. Baugh, 175 S.W. 726), but our statute has been upheld which makes an appearance to the succeeding term follow even a motion, well taken, to quash a citation or its service. And the reason for upholding the statute is quite conclusive of the instant question, that reason being that "it is not the fact that the motion to quash a citation or service is sustained which operates as an appearance, but it is the fact that a defendant appears and asks an adjudication, which makes the appearance." York v. State, 73 Tex. 656 . The defendant having appeared, and not having assailed, but having invoked, the court's jurisdiction, became subject thereto, and the validity or invalidity of the precedent service of citation was entirely immaterial.

We have examined the other assignments but find no reversible error, and the judgments of the District Court and of the Court of Civil Appeals are affirmed.

Affirmed.