BROWN, J.
— The question here involved relates to the validity of the proceedings had by motion to satisfy plaintiff’s judgment.
Relief from a judgment that has been paid may be had on motion, which form of procedure, in general practice, has, in most of the states, superseded the remedy by
audita querela
derived from the common law: See 6 C. J. 851.
Speaking further of procedure, the Supreme Court of Illinois, in discussing cases of this character, wrote:
“In cases arising upon motion, it would seem that the same mode of trial ought to prevail as prevailed at common law in proceedings by the writ of
audita querela,
and such we find to be the practice. An issue is made, and sent to the jury to be tried, as any other issue of fact.”
Harding
v.
Hawkins,
141 Ill. 572, 584 (31 N. E. 307, 309, 33 Am. St. Rep. 347).
However, the right to a hearing by jury may be waived. 2 Freeman on Judgments (5 ed.), p. 2405, thus states a rule that has frequently been announced :
“But under a statute authorizing the court to act upon motion, it is held in some cases that the controverted matters may be determined on affidavits, at least in the absence of any demand for a different method of trial.”
For a full discussion of the procedure in this class of cases, instituted for the purpose of compelling the satisfaction of a judgment or the vacation of a satisfaction of judgment, see 2 Freeman on Judg
ments (5 ed.) §§ 1163-1166; 34 C. J., §§1118-1138; 19 Ency. Plead. & Prac., pp. 122-153.
In ordering an entry of satisfaction of a judgment upon an application therefor, the court acts judicially: 19 Ency. Plead.
&
Prac., 124. It follows that the satisfaction involved herein has the qualities of a judgment at law:
Hubbard
v.
National Stamping & Electric Works et al.,
213 Ill. App. 235.
The question of the plaintiff’s right of appeal has been discussed by the respective parties. An order entered upon a motion to require satisfaction of a judgment is appealable: See
Lawrence
v.
Dickey,
12 N. J. Law, 368; 34 C. J., §1128, Judgments; 19 Ency. Plead. & Prac. 137. But the plaintiff failed to exercise his right of appeal.
The clerk entered the satisfaction of plaintiff’s judgment pursuant to the direction of the court after it had decided that the judgment had been fully paid. The plaintiff asserts the invalidity of the order by reason of the lack of service of process. The proceeding to require satisfaction of the judgment was commenced about four years after the plaintiff procured it. The plaintiff had become an inhabitant of another state. The record shows that more than three years prior to the filing of the motion to satisfy the judgment, the relation of attorney and client had ceased to exist between plaintiff and A. N. Orcutt, the attorney who represented him .in the suit when the judgment was obtained: See Or. L., § 1083,
Before a hearing upon the motion to enter satisfaction was had, notice of such motion to the plaintiff was indispensable. Likewise, plaintiff had a right to be heard before the entry of judgment. Obviously, process was not served upon the plaintiff in accordance with the direction of the court or of
the statute, and the court was without jurisdiction to make a valid order directing satisfaction of the judgment. It is a cardinal principle in the administration of justice that no one can be condemned in his person or property without his day in court: 1 Freeman on Judgments (5 ed.), § 333.
A premature entry of judgment is undoubtedly erroneous, and subject to reversal or motion to vacate on that ground: 3 Freeman on Judgments (5 ed.), § 1289. As to the efficacy of the judgment, see
Woodward
v.
Baker,
10 Or. 491;
Altman
v.
School District No.
6, 35 Or. 85 (56 Pac. 291, 76 Am. St. Rep. 468);
Hodgdon
v.
Goodspeed,
60 Or. 1 (118 Pac. 167); 3 Freeman on Judgments (5 ed.), § 1284.
Notwithstanding our holding that there was not valid service of process in this case, yet the plaintiff is not in a position to complain. Soon after the court had entered its order satisfying the mortgage, the plaintiff filed a general appearance in the proceedings brought to satisfy his judgment, and asked permission to defend upon the merits. The motion-reads, in part, as follows (omitting title of court and cause):
“Comes now the plaintiff, E. C. Herrick, and moves the court for an order setting aside the satisfaction of judgment herein in the above-named matter, based on the affidavit attached hereto, marked ‘Exhibit A’ and made a part of this motion.
“L. M. Travis, “Attorney for Plaintiff.”
The affidavit states, among other things:
“That the said judgment has not been paid or satisfied, either in whole or in part, and that the entire amount of the same, with interest thereon and costs, is still due to this affiant as plaintiff herein; * *
that I have full and complete defense thereto, as I am advised and as I firmly believe; that I am desirous that said order directing’ a satisfaction of said judgment be set aside, in order that I may be heard therein.”
Manifestly, this was a general appearance in the proceedings, by motion. Its object, as stated, was to set aside the order of satisfaction for the purpose of a hearing on the merits. The merits related to the payment of the judgment debt due plaintiff. These defendants pleaded that the issues came on for hearing and determination by the court, and that the issue relating to the payment of the judgment was submitted to the court and determined by its decision contrary to the allegation of plaintiff’s motion.
The plaintiff in this cause has made a voluntary appearance that effectually bars his contention that the court’s judgment of satisfaction was made in the absence of sufficient service of process.
That a party may appear specially to object to the jurisdiction of the court over him is settled beyond peradventure:
Kinkade
v.
Myers,
17 Or. 470 (21 Pac. 557);
Mayer
v.
Mayer,
27 Or. 133 (39 Pac. 1002);
Meyer
v.
Brooks,
29 Or. 203 (44 Pac. 281, 54 Am. St. Rep 790);
Winter
v.
Union Packing Co.,
51 Or. 97 (93 Pac. 930);
Whittier
v.
Woods,
57 Or. 432 (112 Pac. 408). And it is equally well setuled by the decisions of this court that under the practice in Oregon, where a party appears generally and asks to plead and defend upon the merits of the cause, he waives all irregularities in the service of process:
Rogue River Mining Co.
v.
Walker,
1 Or. 341;
Harker
v.
Fahie,
2 Or. 89;
White
v.
Northwest Stage Co.,
5 Or. 99;
Belknap
v.
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BROWN, J.
— The question here involved relates to the validity of the proceedings had by motion to satisfy plaintiff’s judgment.
Relief from a judgment that has been paid may be had on motion, which form of procedure, in general practice, has, in most of the states, superseded the remedy by
audita querela
derived from the common law: See 6 C. J. 851.
Speaking further of procedure, the Supreme Court of Illinois, in discussing cases of this character, wrote:
“In cases arising upon motion, it would seem that the same mode of trial ought to prevail as prevailed at common law in proceedings by the writ of
audita querela,
and such we find to be the practice. An issue is made, and sent to the jury to be tried, as any other issue of fact.”
Harding
v.
Hawkins,
141 Ill. 572, 584 (31 N. E. 307, 309, 33 Am. St. Rep. 347).
However, the right to a hearing by jury may be waived. 2 Freeman on Judgments (5 ed.), p. 2405, thus states a rule that has frequently been announced :
“But under a statute authorizing the court to act upon motion, it is held in some cases that the controverted matters may be determined on affidavits, at least in the absence of any demand for a different method of trial.”
For a full discussion of the procedure in this class of cases, instituted for the purpose of compelling the satisfaction of a judgment or the vacation of a satisfaction of judgment, see 2 Freeman on Judg
ments (5 ed.) §§ 1163-1166; 34 C. J., §§1118-1138; 19 Ency. Plead. & Prac., pp. 122-153.
In ordering an entry of satisfaction of a judgment upon an application therefor, the court acts judicially: 19 Ency. Plead.
&
Prac., 124. It follows that the satisfaction involved herein has the qualities of a judgment at law:
Hubbard
v.
National Stamping & Electric Works et al.,
213 Ill. App. 235.
The question of the plaintiff’s right of appeal has been discussed by the respective parties. An order entered upon a motion to require satisfaction of a judgment is appealable: See
Lawrence
v.
Dickey,
12 N. J. Law, 368; 34 C. J., §1128, Judgments; 19 Ency. Plead. & Prac. 137. But the plaintiff failed to exercise his right of appeal.
The clerk entered the satisfaction of plaintiff’s judgment pursuant to the direction of the court after it had decided that the judgment had been fully paid. The plaintiff asserts the invalidity of the order by reason of the lack of service of process. The proceeding to require satisfaction of the judgment was commenced about four years after the plaintiff procured it. The plaintiff had become an inhabitant of another state. The record shows that more than three years prior to the filing of the motion to satisfy the judgment, the relation of attorney and client had ceased to exist between plaintiff and A. N. Orcutt, the attorney who represented him .in the suit when the judgment was obtained: See Or. L., § 1083,
Before a hearing upon the motion to enter satisfaction was had, notice of such motion to the plaintiff was indispensable. Likewise, plaintiff had a right to be heard before the entry of judgment. Obviously, process was not served upon the plaintiff in accordance with the direction of the court or of
the statute, and the court was without jurisdiction to make a valid order directing satisfaction of the judgment. It is a cardinal principle in the administration of justice that no one can be condemned in his person or property without his day in court: 1 Freeman on Judgments (5 ed.), § 333.
A premature entry of judgment is undoubtedly erroneous, and subject to reversal or motion to vacate on that ground: 3 Freeman on Judgments (5 ed.), § 1289. As to the efficacy of the judgment, see
Woodward
v.
Baker,
10 Or. 491;
Altman
v.
School District No.
6, 35 Or. 85 (56 Pac. 291, 76 Am. St. Rep. 468);
Hodgdon
v.
Goodspeed,
60 Or. 1 (118 Pac. 167); 3 Freeman on Judgments (5 ed.), § 1284.
Notwithstanding our holding that there was not valid service of process in this case, yet the plaintiff is not in a position to complain. Soon after the court had entered its order satisfying the mortgage, the plaintiff filed a general appearance in the proceedings brought to satisfy his judgment, and asked permission to defend upon the merits. The motion-reads, in part, as follows (omitting title of court and cause):
“Comes now the plaintiff, E. C. Herrick, and moves the court for an order setting aside the satisfaction of judgment herein in the above-named matter, based on the affidavit attached hereto, marked ‘Exhibit A’ and made a part of this motion.
“L. M. Travis, “Attorney for Plaintiff.”
The affidavit states, among other things:
“That the said judgment has not been paid or satisfied, either in whole or in part, and that the entire amount of the same, with interest thereon and costs, is still due to this affiant as plaintiff herein; * *
that I have full and complete defense thereto, as I am advised and as I firmly believe; that I am desirous that said order directing’ a satisfaction of said judgment be set aside, in order that I may be heard therein.”
Manifestly, this was a general appearance in the proceedings, by motion. Its object, as stated, was to set aside the order of satisfaction for the purpose of a hearing on the merits. The merits related to the payment of the judgment debt due plaintiff. These defendants pleaded that the issues came on for hearing and determination by the court, and that the issue relating to the payment of the judgment was submitted to the court and determined by its decision contrary to the allegation of plaintiff’s motion.
The plaintiff in this cause has made a voluntary appearance that effectually bars his contention that the court’s judgment of satisfaction was made in the absence of sufficient service of process.
That a party may appear specially to object to the jurisdiction of the court over him is settled beyond peradventure:
Kinkade
v.
Myers,
17 Or. 470 (21 Pac. 557);
Mayer
v.
Mayer,
27 Or. 133 (39 Pac. 1002);
Meyer
v.
Brooks,
29 Or. 203 (44 Pac. 281, 54 Am. St. Rep 790);
Winter
v.
Union Packing Co.,
51 Or. 97 (93 Pac. 930);
Whittier
v.
Woods,
57 Or. 432 (112 Pac. 408). And it is equally well setuled by the decisions of this court that under the practice in Oregon, where a party appears generally and asks to plead and defend upon the merits of the cause, he waives all irregularities in the service of process:
Rogue River Mining Co.
v.
Walker,
1 Or. 341;
Harker
v.
Fahie,
2 Or. 89;
White
v.
Northwest Stage Co.,
5 Or. 99;
Belknap
v.
Charlton,
25 Or. 41 (34 Pac.
758); Mayer
v.
Mayer,
27 Or. 133 (39 Pac. 1002);
Waymire
v.
Shipley,
52 Or. 464, 469 (97 Pac. 807);
Multnomah Lbr. Co.
v.
Weston Basket Co.,
54 Or. 22 (99 Pac. 1046, 102 Pac. 1);
Anderson
v.
McClellan,
54 Or. 206 (102 Pac. 1015);
Fildew
v.
Milner,
57 Or. 16 (109 Pac. 1092);
Jones
v.
Jones,
59 Or. 308 (117 Pac. 414);
Sit You Gune
v.
Hurd,
61 Or. 182 (120 Pac. 737, 1135). This is true in this jurisdiction, whether the party appears before or after judgment.
In the case of
Osburn
v.
Maata,
66 Or. 558, 561 (135 Pac. 165, 167), wherein the question of service by publication of summons was involved, the court, speaking through Mr. Justice Bean, said:
“When the defendants appeared and asked leave to answer to the merits, they waived their right to object to the decree for want of proper service of summons, although they made their appearance after the decree was entered.”
To the same effect are
Belknap
v.
Charlton, supra; Mayer
v.
Mayer, supra; Felts
v.
Boyer,
73 Or. 83, 93 (144 Pac. 420).
In
Duncan Lbr. Co.
v.
Willapa Lbr. Co.,
93 Or. 386 (182 Pac. 172, 183 Pac. 476), this court denominated the case of
Belknap
v.
Charlton, supra,
as the leading case on this subject in our jurisdiction. In the Belknap case, 25 Or. 41, 45, 46 (34 Pac. 758, 759), Mr. Justice Bean wrote:
“It is claimed by the plaintiffs that while a defendant may appear specially to ojject ro the jurisdiction of the court over him on account of the illegal service of process, * * he must keep out of court for every other purpose, and that any appearance which calls into action the power of the court for any purpose except to decide upon its own jurisdiction is a general appearance, and waives all defects in the service of process, and many authorities are cited to sustain this position. The principle to be extracted
from the decisions on this subject is that, where the defendant appears and asks some relief which can be granted only on the hypothesis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance by its terms be limited to a special purpose or not (citing authorities). This seems to be a reasonable rule, and one which will adequately protect the rights of the parties, and it determines the effect of defendant’s appearance from the nature of the relief which he seeks to obtain. ’ ’
A much cited case is
Burdette
v.
Corgan,
26 Kan. 102, and it is directly in point. In a number of decisions this court has cited that case as authority for the doctrine that, when a party appears, either before or after judgment, with a request to plead to the merits of the cause, he waives all irregularities in the service of process, without regard to whether he is permitted to file an answer or not:
Belknap
v.
Charlton, supra; Mayer
v.
Mayer, supra.
In the latter ease, the court quotes the following from Mr. Justice Brewer, who rendered the opinion for the Kansas court in the case alluded to above:
“A
party cannot come into court, challenge its proceedings on account of irregularities, and after being overruled be heard to say that he never was a party in court, or bound by those proceedings. If he was not in fact a party, and had not been properly served, he can have the proceedings set aside on the ground of want of jurisdiction, but he must challenge the proceeding's on that single ground. This is familiar doctrine. ’ ’
“One who is objecting to a judgment on the ground that it was rendered without personal jurisdiction must limit his subsequent apearance in the case to the sole purpose of having the judgment vacated. In this, as in any other case, any act which amounts to
a general appearance confers jurisdiction and defeats any objection based on its lack.” 1 Freeman on Judgments (5 ed.), p. 530.
To like effect is 4 C. J., § 64, Appearances.
We are aware that there is a line of decisions to the contrary; but we are bound to follow the holdings of the court in our own jurisdiction.
The court solemnly found that the judgment involved herein had been paid and satisfied in full and that the plaintiff had failed to make proper entry thereof, and adjudged that the clerk be directed to enter satisfaction thereof on the judgment docket. That decision has never been vacated. Hence, the court did not err in overruling plaintiff’s demurrers.
This case is affirmed. Affirmed.
McBride, C. J., and Bean and Burnett, JJ., concur.