Rauch v. Zander

Bridges, J.

By this action the plaintiff sought to have annulled a written contract between himself and the defendants concerning certain lands. Following the service of summons and complaint on the defendants, the plaintiff obtained an order to show cause why they should not be required to at once surrender possession of the land. On the day set for hearing the show cause order (which was ten days before the expiration of the 20 days from the time of the service of the summons and complaint), the defendants made a ‘ ‘ special appearance ’ ’ in that matter. After a hearing, the court denied plaintiff any relief in that respect. Thereafter and within twenty days after the service of the summons and complaint, the defendants filed and served what is designated as a “special appearance,” reading as follows:

“Now come the defendants through their attorneys. . . and appear herein specially and not otherwise and with respect show to the court that there was no other summons and complaint served on them herein except the purported summons and complaint hereto attached which was served on A. D. Zander; that the said summons is not in proper form to confer jurisdiction on the court, and said complaint is not verified nor sworn to in the manner required by law or at all, and these defendants say that they are not required to answer nor further appear and answer to said unverified complaint.”

Thereafter the plaintiff served and filed his motion for default. After a hearing upon notice, the court gave defendants till a time certain to serve and file their answer. The answer was not filed, but within the time specified, defendants served and filed a demurrer to the complaint, and a motion to strike therefrom, reserving, however, in each the previous special appearance. Thereafter and without having made any ruling on the special appearance or the demurrer or the motion to strike, the court, on application of the plaintiff, entered a judgment of default, made findings of fact, conclusions of law and judgment as prayed. These the defendants moved to vacate, still reserving their special appearance. The court denied their motion, and this appeal results.

The appellants claim that they have never been in default; that the court was bound to rule upon their special appearance objecting to the sufficiency of the original summons and complaint. The respondent contends that the so-called special appearance amounted to nothing more than a notification that the defendants appeared in the action, which would not prevent a default, but which would require all subsequent proceedings taken by the respondent to be served upon them, and that there was nothing in the special appearance which called for any ruling of the court.

If the special appearance were nothing more than a notice of appearance, then the judgment should he affirmed; but if it were such an appearance as required some ruling of the court to dispose of it, then, it not having been disposed of, appellants were not in default. It must be conceded that the special appearance is unusual in form and indefinite, but it seems to clearly indicate that appellants were contending that the court had no jurisdiction of them. A special appearance ordinarily asks that the service of the process be quashed, but while that relief was not specifically asked for, it is plain that such was appellants ’ purpose. We are forced, therefore, to the conclusion that this special appearance was for the purpose of questioning the jurisdiction of the court and to quash the service of process. Being such, the appellants could not be in default until the court had disposed of it. It is intimated by the respondent that the fact that the court later granted the default was in effect an overruling of the special appearance motion. But the appellants were entitled to have the record expressly show a ruling of the court.

The judgment is reversed for proceedings in accordance herewith.

Tolman, C. J., Main, Parker, and Askren, JJ., cur. con-