Page v. Commercial National Bank of Salt Lake City

112 P. 816, 38 Utah 440, 1911 Utah LEXIS 11

• Court: Utah Supreme Court
• Decided: January 5, 1911
• Docket: No. 2182
• Status: Published

Opinion

FRICK, O. J.

The plaintiff made an original application to this court for a writ of certiorari directed to the above-named defendants. The writ was issued as prayed for, and the defendants have duly complied with the commands thereof by certifying to this court a transcript of all the proceeding had in a certain action pending in the District Court of Salt Lake County.

The controlling facts, in substance, are: That on the 21st day of July, 1909, the defendants Commercial National Bank and H. P. Clark, as trustee, commenced an action in the District Court of Salt Lake County against a certain copartnership and a corporation. In the language of the complaint in that action the defendants therein are sued as “Page & Brinton, a copartnership, and Utah Savings & Trust Company, a corporation.” On tbe same day tbe action was commenced tbe district court, upon application duly made, also issued an order directed to said firm of Page & Brinton requiring it to show cause by a day fixed wby a receiver should not be appointed “pending tbe trial of tbe cause for all tbe assets and property of tbe said Page & Brinton, a partnership with power to take, receive and collect all tbe moneys due or to become due to said defendant partnership1 from any and every source whatever.” On tbe same day tbe complaint was filed and tbe order to show cause as aforesaid was issued, tbe sheriff of Salt Lake County made return that be served tbe summons issued in tbe action and said order to show cause “upon Page & Brin-ton, a copartnership, defendant, by delivering to and leaving with David B. Brinton, one of tbe copartners,” a copy of tbe summons and also a certified copy of tbe order to show cause. On tbe 2d day of August, 1909, tbe record shows that both tbe plaintiffs and tbe defendant Page & Brinton appeared in court by their respective attorneys, and tbe bearing on tbe order to show cause w.as continued to tbe following day. Tbe record shows, further, that on that day tbe parties aforesaid again appeared in court by their counsel and that after bearing- evidence on behalf of plaintiffs tbe court appointed a receiver as prayed for. Following this, on tbe 9th day of August, and before tbe time to answer in tbe action bad expired, tbe defendant Page & Brinton appeai’ed specially by filing a motion in which it assailed tbe jurisdiction of tbe court over the' person of said Page & Brinton upon tbe grounds that there has been no service upon said partnership or any member thereof;” that neither when tbe action was commenced nor when tbe pretended service of summons was made was there any “partnership known as Page & Brinton composed of PL D. Page and D. B. Brinton as alleged in plaintiff’s complaint;” that tbe only service of summons that was made in tbe action was upon D. B. Brinton, who, at tbe commencement of tbe action or at tbe time tbe pretended service was made was not and is not now a member of tbe firm of Page & Brinton, and that “at the time-of all the matters referred’ to in said complaint the said D1. B. Brinton was not, and is not now, a member of said firm.” The foregoing motion was supported by an affidavit, and said Page & Brinton were given until September 9, 1909, within which to file additional affidavits “in support of said motion without prejudice to any right they now have as to their appearance.” On the 18th day of August, 1909, Mr. Brinton, one of the alleged partners of the firm of Page & Brinton, filed an affidavit in which he stated that prior to the 22d day of May, 1906, there was a firm by the name of Page & Brinton; that affiant was one member thereof and that H. D. Page was the other member; that on the day aforesaid affiant sold all his interest in said firm to said H. D. Page and that since said time affiant at no time was a member of said firm. On the 1st day of September following H. D‘. Page of Page & Brinton filed a motion whereby he specially appeared in the action, and ashed the court to quash and set aside the pretended service of summons on Page & Brinton as aforesaid upon substantially the same grounds heretofore mentioned, and upon the further ground that the return as made by the sheriff was false and untrue in that at the time the pretended service was made “there did not exist any firm or partnership by the name of Page & Brinton, nor was at said time David B. Brinton a copartner of Page & Brinton or other agent of this mover.” This motion was supported by Mr. Page’s affidavit wherein he reiterated the facts stated by Mr. Brinton with respect to the existence and dissolution of the copartnership of Page & Brinton, and stated, further, that since the dissolution of said copartnership “affiant has. been doing • business under the style of Page & Brinton.” Affiant further stated that he alone was concerned in and conducted said business and that the return of the sheriff showing service on the firm of “Page & Brinton by serving David B. Brinton as one of the members of said firm was false in that there was no such firm or partnership existing at said time, and said Brinton was not a member thereof, nor was he the agent of affiant." The motion of Mr. Page remained pending until October 23, 1909, at which time plaintiff’s counsel moved the court for a default as against the firm or copartnership of Page’ & Brinton. Counsel for Mr. Page insisted that the motion to quash the service of summons had precedence, and upon being asked by the court whether they objected to the entering of a default against the firm of Page & Brinton they said that in the sense that they had a pening motion that they did so object. After considerable argument by counsel for both sides upon the subject of whether the service of summons was sufficient and whether or not Mr. Page had appeared in the action the court overruled the motion to quash the service of summons, and the attorneys appearing for Mr. Page, upon their own request, were given “ten days in which to plead herein.” Thereafter, on the 3d day of November, 1909, H. I). Page filed a general and special demurrer in the action, the introductory part of which reads as follows: “Comes now Hubert D. Paige, impleaded herein as Page & Brinton, and specially appearing for the purpose of this demurrer only, . . . and without waiving his objections to the jurisdiction of the court over him,” demurs on substantially the following grounds, namely: (1) That the court “has not jurisdiction over the defendant;” (2) that “the court has no jurisdiction over the subject-matter of this action;” and (3) that the “complaint does not state facts sufficient to constitute a cause of action.” This demurrer it seems was still pending when this proceeding was commenced. On the 9th day of January, 1910, counsel for plaintiffs in the pending action served a notice, service of which, using defendants’ counsel’s own language, was accepted as the “attorneys for Hubert D. Page as Page & Brinton.” The notice served as aforesaid notified said last-named attorneys that said plaintiff’s counsel would apply to the district court for an order which, among other things, would require “that the defendants Plubert D. Page and David B. Brinton do within —-days from date of this order assign in writing to the receiver appointed in this case in due and proper form for the benefit of creditors and those entitled thereto all the right, title, and interest of the said copartnership, and of each of said copartners personally in and to all claims for money admitted by the United States . . . and all claims made or to be made by the copartnership or either of said copartners for further sums of money on account of a contract” entered into by said copartnership with the United States known as contract No. 103, dated May 19, 1906, and all rights arising under the same. After a hearing in which counsel for both sides participated the court granted the application and made an order requiring the assignment as indicated in the foregoing quotation. Immediately after the foregoing order was made by the district court, and for the purpose of preventing its enforcement, the application for a writ of certiorari to review the proceedings had in the district court as before stated was made to this court, and the writ was granted as stated in the opening of this opinion.

We have given a full synopsis of the proceedings had before the district court, not because we deemed it essential for the purpose of this decision, but for the purpose of showing that the proceedings had before the court were regular and in due course. The matter upon the application was submitted to us upon the affidavit of the plaintiff herein and the certified transcript of the proceedings had before the district court in the case referred to. As we understand counsel for plaintiff herein they insist that the district court exceeded its authority or jurisdiction in making the order requiring the assignment before referred to upon the grounds: (1). That the district court in the action pending therein has obtained jurisdiction of neither the copart-nership of Page & Brinton nor of Mr. Page, who, it is contended, alone represented or constituted said firm; and (2) because the court in said action at no time obtained1 possession of any property belonging to said copartnership or in which it has any interest, or which was within the state of Utah, or within the jurisdiction of the court. Upon the other hand, counsel for the defendants herein contend that the service of summons on Mr. Brinton as made as sufficient to give the court jurisdiction over the copartnership as such, and over its property or assets for the purpose of appointing a receiver therefor. Further, that both Mr. Brin-ton and Mr. Page had conferred jurisdiction upon the court of both their persons and of the firm or copartnership1, by what they said and did through their counsel during the course of the proceedings, and especially by appearing and objecting to the entry of the default against the firm of Page & Brinton as stated, and that Page certainly conferred jurisdiction over himself by filing his general demurrer by which the sufficiency of the complaint was assailed. The filing of a general demurrer to a complaint no doubt constitutes a general appearance which is sufficient to confer jurisdiction over the person. (Farnsworth v. U. P. Coal Co., 32 Utah 112, 89 Pac. 74; Stone v. U. P. 1 Ry. Co., 32 Utah 185, 89 Pac. 715; section 3334, Comp. Laws 1907.) Plaintiff’s counsel, however, insist that in filing the general demurrer they acted under protest, and in doing so saved all the rights they had under their special appearance. The courts are not unanimous as to whether a defendant who appears specially to assail the court’s jurisdiction over his person may preserve his rights under his special appearance by appearing generally under protest and subject to the special appearance. For the purposes of this decision we shall assume that a party who has preserved his rights by a special appearance may, subject to such appearance, appear generally, and may on appeal be permitted to review the orders and rulings of the court relating to the question of the jurisdiction over his person as well as those orders, rulings, and judgment made in the action after his general appearance. The controlling question in this proceeding, however, is, can a party review the orders and rulings of the court with respect to its jurisdiction over the person of such party by the special proceeding of cerbiora/ri in a case where he has the right to do so in the regular way by appeal? Counsel for plaintiff herein say this may be done, and in support of their contention they cite some cases from the Supreme Court of Michigan. Counsel evidently have failed to examine the statutes of Michigan relative to the right of review by the writ of certiorari. Had they done so, we think they would not have insisted that what may be done by way of review under the Michigan statute by writ of certiorari may also be done under a similar writ in this state under our statute. Our statute is entirely different from that in force in the state of Michigan. Under the Michigan statute the writ of certiorari, in many cases, takes the place of our appeal, while under our statute cer-tiorari does not lie in a matter like the. one before us in case an appeal can be had. Section 3630, Comp. Laws 1907, so far as pertains to the powers of this court in granting writs of certiorari provides that “when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of said tribunal, hoard, or officer, and there is no appeal, nor in the judgment of the court or judge a plain, speedy, and adequate remedy,” the writ of certiorari may be granted to review the proceedings of the tribunal or officer aforesaid. (Italics ours.) Prom the foregoing provisions two purposes are clearly apparent: (1) That the writ shall be granted by this court only to correct the usurpation or abuse amounting to usurpation of 2 power or authority, and (2) when there is neither an appeal nor other speedy and adequate remedy by which such usurpation can be corrected. This, we think, is substantially what this court has already held. In the case of O. S. L. R. Co. v. District Court, 30 Utah, the present Chief Justice, in speaking for the court, at page 374, 85 Pac., at page 362, said: “This court will not permit a writ of certiorari to be issued to exercise the functions of an ordinary appeal to review errors or mistakes where the court acted within its jurisdiction. . . . When, therefore, it is made to appear, as is required by subsequent provisions of the statute, that the district court has exceeded its jurisdiction, and that there is no appeal nor plain, speedy, and adequate remedy, we have the right and power to- issue a writ of certiorari to inquire into and review determinations made by it without or in excess of its jurisdiction.” (Italics ours.) The foregoing case is followed in Hoffman v. Lewis, 31 Utah 179, 87 Pac. 167.

Tbe contention that tbe court acted without or in excess of jurisdiction in making tbe order requiring tbe partnership of Page & Brinton and each of tbe partners to assign to tbe receiver tbe claims mentioned in tbe order is, for tbe purposes of this proceeding, in our judgment, untenable. As we bave shown, tbe order was not made until after both Mr. Brinton and Mr. Page each bad generally appeared in tbe action. Tbe court thus, subject to their special appearance at least, bad acquired' jurisdiction over them. True, tbe question whether such jurisdiction was acquired by tbe court or not was subject to review on appeal, but in our judgment is not subject to review by tbe writ of certiorari. Ordinarily we are deprived of tbe power to review the proceedings of tbe district court by issuing writs of certiorari when it is made to appear that tbe court whose orders or rulings are complained of bad jurisdiction to make such orders or rulings at tbe time they were made. Mere errors or irregularities of such courts where jurisdiction exists cannot be reviewed by this court except on appeal. If tbe district court, therefore, should err in bolding that service of summons in a particular manner or upon a particular person conferred jurisdiction over some other person by reason of tbe legal relationship existing or alleged to exist between tbe two persons, or if tbe court should err, however grossly, in bolding that certain conduct or statements of tbe person or bis counsel in open court constituted a general appearance whereby tbe court acquired jurisdiction over such person, such errors would not deprive tbe court of jurisdiction to proceed in tbe action and could be reviewed 3 only on appeal. This seems to us too obvious to admit of serious controversy. When service of summons is made and such service is assailed as insufficient to confer jurisdiction over tbe person, tbe question respecting tbe sufficiency of service must be submitted to tbe court for decision in which tbe action is commenced. Such court, it must be conceded, has jurisdiction to bear and determine tbe question of whether the service is sufficient or not to confer jurisdiction. Suppose it be conceded that the service, as a matter of law, is insufficient to confer-jurisdiction over the person, and this court on appeal would so hold, does it follow that the inferior court was therefore ousted of jurisdiction to proceed farther in the action or that its orders or rulings could' be reviewed by the writ of certiorari ? We think not. This must be so for various reasons. If in the case now pending in the district court that court proceeds to judgment, as it possibly will, and its judgment should be adverse to the plaintiff herein, could it be seriously contended that such a judgment was without or in excess of jurisdiction so as to permit a review of the proceedings upon which it rests by a writ of certiorari ? We think not. In such a case the record itself would disclose that'any other review except on appeal would be improper because it would affirmatively appear that all questions, including the question of jurisdiction over the person, had been submitted to and passed on by the court. The record would further show that the plaintiff had entered a general appearance in the action. True, such appearance would appear to have been subject to the special appearance, but it is also true that unless plaintiff should pursue the court’s rulings in holding that it had' acquired jurisdiction over him by taking an appeal he would waive the error, and the judgment could not be assailed in any other way except on appeal. This simply illustrates that while a special appearance may be sufficient to preserve the right to. a review on appeal, although a 4 general appearance has been made, yet it also is apparent that the special appearance cannot prevent the court from acquiring jurisdiction over the person so as to authorize a review of the question of jurisdiction by the writ of cer-tiorari. The jurisdiction is given by the general appearance, and it exists, and the only way it can be questioned under such circumstances is by way of an appeal by which the proceedings may be reversed and set" aside because the court erred in assuming jurisdiction, but not because it had no ' jurisdiction to proceed at all and thus bad no jurisdiction even to err. If the foregoing conclusions are not sound, then it must follow that, in every case where the sufficiency of service to confer jurisdiction over the person is in question, the court’s rulings thereon may be reviewed by the writ of certiora/ri. Moreover, in a case like the one at bar where the order complained of was made a party may assail such an order in three ways: (1) By the writ of certiorari; (2) by refusing to comply with the order, and if imprisoned for contempt of court by suing out a writ of habeas corpus upon the ground that the order is void because the court was without jurisdiction; and (3) if he should fail in both of the foregoing proceedings, then ask a review of the proceedings on appeal. This alone shows the fallacy of the contention that a person in conferring jurisdiction over his person by a general appearance may nevertheless insist that the court lacked such jurisdiction because before he appeared generally he had also appeared specially, and hence his general appearance could be of no legal effect because the general appearance was in effect made under duress or compulsion. There is no duress or compulsion invovled in such a proceeding.’ Where one objects to the sufficiency of service to confer jurisdiction over his person and his objection is overruled he may either appear and defend the action or he may refrain from further participation therein. If he appears and defends he may perhaps nevertheless review the court’s rulings relating to the jurisdiction over him on appeal, but he may not appear and defend on the merits, and then deny that the court acquired jurisdiction over him.

As to whether the court erred or not in holding the service of summons sufficient to confer jurisdiction, or in holding that the plaintiff had entered a general appearance by what his counsel did or said, or what the legal effect of such errors would be in this case, we express no opinion. Such rulings at most may constitute errors which must be reviewed on appeal, and not by writ of certiorari. Moreover, the writ of certiorari cannot be employed to review merely interlocutory orders or rulings as is attempted here. (Schwarz v. County Court, 14 Colo, 44, 23 Pac. 84.) Nor can such a writ be used as a means to prevent threatened wrongs. The office of the writ of certiorari under statutes like ours is merely to annul acts which are clearly without or in excess of jurisdiction, and hence con- 5 stitute usurpation of judicial power, and not to prevent in advance threatened wrongs. (People v. County Judge, 40 Cal. 479; Beeler v. Hall, 30 Tenn. (11 Humph.) 445; McCorkle v. Brooks, 53 Tenn. (6 Heisk.) 601; Sayers v. Superior Court, 84 Cal. 642, 24 Pac. 296.) Under the foregoing authorities the claim made by counsel for plaintiff that this court should interfere because by the order of the-court requiring the assignment the plaintiff may be prejudiced can be given no effect. The same must stand or fall-upon the one question of jurisdiction.

Prom what has been said it follows that although a person may appear specially and by motion assail the jurisdiction of the court over his person, and in case the court errs -- in overruling his motion he may review the court’s rulings, on appeal, 'yet that he may not appear generally and then •. challenge the court’s jurisdiction over his person by a writ:, of certiorari.

The writ heretofore issued, therefore, should be, and the - same is hereby, quashed and set aside; defendants to recover* their costs in this court.

McCAETY, J., and LEWIS, District Judge, concur.