Blinn v. Rickett

6 Ohio C.C. (n.s.) 513

• Court: Lorain Circuit Court
• Decided: April 15, 1905
• Status: Published

Opinion

Riekett, the defendant, filed this motion before the justice of the peace:

“J. G. Blinn, Plaintiff, v. Claude M. Rickett, Defendant.

“Now comes the defendant and moves the court to discharge the attachment issued herein, for the reason that the affidavit upon which said attachment was issued is false, and the facts alleged therein untrue.”

That motion was sustained, and the justice then proceeded to dismiss the action.

The error complained of is not that he dismissed the attachment, but that he dismissed the action; because it is urged that Riekett, having made this motion, had submitted himself to the jurisdiction of the court, and the court therefore had jurisdiction of his person in the proceeding.

It is well settled that where one upon whom service has not been made appears for the purpose oO discharging or dismissing an -insufficient service, and appears for no other purpose, he is not to be held to have submitted himself to the jurisdictien of the court upon the merits of the case.

The ordinary form, as we all know is, in a ease like that, to say: “Now comes the defendant herein, and appearing for the purpose of this motion only, moves the court.”

If that is necessary in order to avoid submitting one’s self to the jurisdiction, then Rickett did submit himself to the jurisdiction ; but if that is not necessary, he did not submit himself. As has been said, it is thoroughly well settled, that where one appears for the purpose of questioning the jurisdiction and for no other purpose, he does not submit himself to the jurisdiction. Must he in his motion say so, or is it sufficient for him to say by his motion that he app'ears for nothing else-. Is one to be said to have appeared for something else than that which he asks to have done? We think not. We think that this motion did not submit Rickett to the jurisdiction of the court over any matter in that case, except the one thing that he asked to have the court do-; and we find authority in the Supreme Court of Kansas for that view, in the case of Green v. Green, 22 Pacific Reporter, 730. The second clause of the syllabus re-ads:

“A motion to set aside a judgment in the following.words: ‘Now comes the defendant, Oliver Green, by his -attorneys, Welch & Welch, and'moves the court to set aside the judgment rendered on the 1st day of October, 1887, in favor of the plaintiff herein, for the reason that no proper service was had on the defendant, Oliver Green, in said suit,’ ” is a special appearance only. The court also cited the case of Reynolds v. Fleming, 30 Kan., 106; 1 Pac. Rep., 61. The 2d Vol. of Ency. of Pleading and Practice lays down the general proposition which was stated at the beginning of what is now being said, as recognized by all where one appears for a special purpose, and that only to question the jurisdiction, he does not submit himself to the jurisdiction. Whenever he asks to have the court pass upon any question connected with the merits of the case that moment he does submit himself to.the jurisdiction.

Fritz Fueling, for plaintiff in error. Clayton Chapman, for defendant in error.

The court of common- pleas affirmed the justice of the peace in dismissing the action, and this court affirms the judgment of the court of common pleas.