Doggett v. Atchison, T. & S. F. Ry. Co.

1912 OK 27, 120 P. 654, 31 Okla. 177, 1912 Okla. LEXIS 29

Opinion

TURNER, C. J.

On June 5, 1909, E. E. Doggett, plaintiff in error, sued the Atchison, Topeka & Santa Ee Railway Company, defendant in error, before a justice of the peace in and for the city of Perry, Noble county. On the return day of.the summons, defendant appeared specially and moved to quash the same, for certain reasons set forth in its motion, which was overruled, and exceptions saved, whereupon it filed a motion for continuance, supported by affidavit, which was granted. Later there was trial, and judgment rendered and entered for plaintiff, and defendant appealed to the county court. There, on trial anew, judgment went sustaining said motion to quash, and plaintiff brings the case here.

This is assigned for error, in support of which it is urged that by appealing defendant waived all irregularities in the issuance and service of summons, and could not thereafter be heard to question the same, or deny the jurisdiction of the appellate court over its person. The point is well taken. Defendant entered a general appearance by prosecuting its appeal and invoking a trial' de novo. Gulf Pipe Line Co. v. Vanderberg, 28 Okla. 637, 115 Pac. 782, 34 L. R. A. (N. S.) 661. See, also, Latimer v. Giles, 29 Okla. 234, 116 Pac. 795.

Reversed and remanded.

All the Justices concur.