OPINION BY THE COURT
HANNA, C. J.,
(after stating the facts as above). We shall consider the assignments of error from the standpoint of the importance of the questions raised, as the order-in which the assignments of error are presented is not the sam-e in the briefs, and tends to confusion.
[1] The first question to be considered is whether an information in the nature of quo warranto is the proper remedy to try the title to office in a private corporation. In this jurisdiction we unfortunately have no statute upon the subject of this remedy and are left entirety to the common-law principles and our interpretation of the scope of the statute 9th Anne, chapter 20. The English rule is that to justify the emplojnnent of quo warranto to try title to office it is essential that the office be such as the law deems of a public nature. The Massachusetts courts seem to be the only American courts which follow the English rule. All other American courts agree in holding that an action of quo warranto, or in the nature of quo warranto, is the proper remedy to test the right of office in a private corporation. The American cases are collected in the note to the case of George H. Brooks, plaintiff in error, v. State of Delaware ex rel. Robert H. Richards, Attorney General, reported in 26 Del. 1, 79 Atl. 790, 51 L. R. A. (N. S.) 1126, Ann. Cas. 1915A, 1133. See, also, High on Extr. Leg. Rem. (3d Ed.) § 653.
[2] The next question in order of importance is raised by point 6 in appellant’s brief, that a corporation cannot act as relator in informations in the nature of quo warranto. It is argued that under the provisions of the statute of Queen Anne, § 4, the right to exhibit quo warranto informations upon relation was confined to “any person or persons desiring to sue or prosecute the same and who shall be mentioned'in such information or informations as the relator or relators.” It is further pointed out that the costs to be recovered are “his or their costs,” which would preclude the assumption that a corporation falls with, the purview of the statute. It is said that the reason for the rule is that an informer or relator in quo warranto procedings must be, a person or individual as distinct from the corporate entity, because the entire purpose of the informer or relator is to inform the crown or state officers of certain facts under oath for the purpose of moving him officially to take action in the premises, and that a corporate entity is not capable of taking an oath or giving him the information.
We cannot see the appropriateness or force of this argument. It might just as well be argued that a trustee could not bring an action on behalf of his cestui que trust, or that a guardian could not bring an action on behalf of his ward, under appropriate circumstances. ' Appellant has cited numerous authorities which we do not, however, consider in point, and we are disposed to agree with the contention of appellee that the real test of the right of the relator to bring a proceeding in quo warranto is whether the relator has the necessary interest to maintain the action. We are of the opinion that an information for the purpose of dissolving a corporation or seizing its franchises cannot be prosecuted in the name of the state at the relation of private persons, even though leave be first obtained of the court, but that such proceeding must be instituted by the Attorney General. High’s Extr. Leg. Rem. (3d Ed. § 698. In this ease, however, it is not a suit to dissolve the corporation, but to inquire by what right or authority individuals named as respondents are exercising the franchises of the corporation, and it would seem to be clear that the corporation itself would be necessarily materially interested in any alleged usurpation of its franchises. It is contended that.no cases in point upon this question can be found. A number of cases, however, have been cited bjr appellee involving the right of municipalities to maintain an action, and while these cases are not strictly in point, we cannot agree that a different line of reasoning should apply to private corporations, but consider that the rule as applied to municipal corporations, must logically be extended to private corporations. A municipal corporation cannot verify an information or respond in costs any more than can a private corporation, as both are necessarily compelled to act through officers or agents. The eases cited by appellee are Beverly v. Hattiesburg, 83 Miss. 621-624, 36 South. 74; State ex rel. Kansas City, Mo., v. East Fifth St. Railway Co., 140 Mo. 539, 41 S. W. 955, 38 L. R. A. 218, 62 Am. St. Rep. 742; State ex rel. City of St. Louis v. L. D. Co., 246 Mo. 618-637, 152 S. W. 67; City of Olathe v. M. & K. I. Ry. Co., 78 Kan. 193, 96 Pac. 42.
In the last-mentioned case, the court distinctly held that a municipal corporation is a person, within the meaning of the word as used in a statute providing that:
“Where the action is brought by a person claiming an interest in the office, franchise or corporation, or claiming any interest adverse to the franchise, gift or. grant which is the subject to the action, it shall be prosecuted in the name and under the direction and at the expense of such persons.”
In State ex rel. Vilter Mfg. Co. v. Milwaukee, B. & L. G. R. Co., 116 Wis. 142, 92 N. W. 546, the court said a private corporation is a person, within the meaning of section 3466, S'tats. 1898, providing that an action may be brought by the Atotrney General in the name of the state “when any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within the state.”
[10] Cases to the same effect might be multiplied, but it is sufficient to say that American authorities are in one accord in holding that the word “person” is a generic term of comprehensive nature, embracing natural and artificial persons, such as corporations.
The so-called Tularosa Case is referred to as an authority upon the point under consideration. This case was first reported - under the title of Community Ditches or Acequias of Tularosa Townsite, a Corporation, v. Tularosa Comumnity Ditch, 16 N. M. 750, 120 Pac. 301, in which case it was held that:
“The remedy for the unlawful assumption of the right to act as a corporation, and the exercise of corporate rights ultra vires, is by) quo warranto and not in equity.”
On a second appeal of this case, reported in 19 N. M. 352, 143 Pac. 207, this court referred to the question of whether the common law or the statute of Anne applied to a proceeding where th-e object sought is to oust individuals from the exercise of a corporate franchise, or against a corporation for •usurping a franchise. The court said that, the information having been filed on the assumption that the statute of Anne applied to a proceeding in the nature of the one before the court, and there having been no objection upon that ground, the court would treat the information as properly filed, although there was doubt as to whether the statute had any application to the proceeding, citing Rex v. Carmarthen, 2 Burr, 869, and other cases relied upon by apellants.
For the reasons indicated the Tularosa Case can have little importance as authority in the consideration of the question before the court.
We conclude that, in a proceeding on information in the nature of quo waranto to oust individual respondents from franchises alleged to be usurped in a private corporation, the corporation is a proper relator, by reason of its special interest in the-matter of the inquiry.
[3] This brings us to the next phase of appellant’s objection, as to the right of relator to be heard. This objection as stated under point 2 in appellant’s brief is that:
"¡Inform|í^ti|Ons, in the nature ,of q(ao war'ranto (brought against individuals to inquire by what right they use and exercise the liberties, privileges, and franchises of a corporation, must be brought by and in behalf of the state, and filed and prosecuted by the Attorney General of the state.”
In support of this contention appellants cite numerous authorities. The most succinct statement of the entire question, however, we believe, is given in Bailey on Habeas Corpus, at section 343, from which we quote as follows:
“At common law, private individuals, without the intervention of the Attorney General, cannot, either as of right or1 by leave of court, file an information in the nature of a quo warranto. The abuse of a public franchise under color of a legislative grant is a public wrong, as distinguished from a private grievance, hence the remedy by quo warranto must pr'oceed from the Attorney General, or some authorized agent of the sovereign power, to dissolve it. In cases involving merely administration of corporate functions or duties which touch practically only individual right, such as the election of officers, admission of a corporate officer or member, and the like, the writ may issue at the suit of the Attorney General, or of any such person desiring to prosecute the same, where such method has the sanction of statutory permission; and where not, and such person días an interest which is injuriously affected, of such a character as will satisfy the proceedings, he may, upon leave of the court, in the name of the state or Attorney General, prosecute such proceedings.”
Tt is onr opinon that the appellants have fallen into error in an assumption that the sole question under consideration in the present case is one affecting public interest, such as might be said to arise from the abuse of a public franchise, refered to by Mr. Bailey. We have alreadjr pointed out in this opinion that, where the object of a suit is to dissolve a corporation or seize its franchises, the action can only be prosecuted in the name of the state. This principle is well stated by Mr. High in his work on Extraordinary Legal Remedies in th-e following language (section 624) :
Since, under the American system, all power emanates from the people, who constitute the sovereignty, the right to. inquire into the authority by which any person assumes to exercise the functions of a public office or franchise is regarded as inherent in the people in the right of their govereignty. * • * ”
'This ease does not involve a public question such as would arise were an attack made upon the franchise of the corporation, but is a case involving a private right, and one such as referred to by Mr. Bailey when he speaks of a case involving merely the adminstration of corporate functions or duties, which touch practically onfy individual rights, such as election of officers, admission of a corporate officer or member, and the like; in which cases this author recognizes the right of a private person, having an interest which is injuriously affected, to maintain proceedings in the nature of quo warranto, upon leave of court, in the name of the state or Attorney General. See, also, High’s Extra. Leg. Rem. § 654. Mr. Bailey supports his text by the citation of the following authorities: Murphy v. Farmers’ Bank, 20 Pa. 415; People v. North Chicago R. Co., 88 Ill. 537; Kenney v. Gas Co., 142 Mass. 417, 8 N. E. 138; State v. Turnpike Co. (1 Zab.) 21 N. J. Law, 9.
Upon examination of the Pennsylvania case referred to, a first impression would seem to warrant the conclusion that the ease was not authority, because the opinion of the court is an interpretation of a legislative act of 1836, conferring the right to- maintain the action on “any person or persons desiring to prosecute the same.” A more careful examination of the case, however, discloses that the same words appear in the statute of Anne, and were evidently taken from that statute. So that we may reasonably assume that the conclusion of the court would have been the same had the statute of Anne been alone under consideraion. This ease is so instructive as pointing out the distinction between the use of the remedy quo warranto in cases involving public rights only and in cases involving individual grievances, that we take the liberty of quoting somewhat extensivety therefrom. The court said :
"The statute of Anne was enacted in 1710, and gave jurisdiction in quo warranto to the Queen’s Bench. In 1722 our Supreme Court was authorized to issue habeas corpus, certiorari, writs of error, and all remedial writs, and were clothed with the same jurisdictions and powers as the Justices of the Court of King’s Bench, Common Pleas, and Exchequer, at Westminster. This was a sufficient warrant for this court to adopt in practice a rule prescribed in the statute of Anne;, and justifies the remark of Judge Gibson in Burrell’s Case [1 McCord Eq. (S- C.) 31, note] that the substance of that statute had been adopted before our Revolution as part of our common law.
"These words have been the subject of judicial decision, and the authorities show that they do not give a private relator the writ of quo warranto in a case of public prerogative involving no individual grievance. On this point the authorities are full, direct, and harmonious. The usurpation of an office, established by the Constitution, under color of an executive appointment, and the abuse of a public franchise under color of a legislative grant, are public wrongs and not private injuries, and the remedy by quo warranto, in this court at least, must be on the suggestion of the Attorney General, or some authorized agent of the commonwealth.
“For the authorities, I refer myself to those cited in the argument of the respondent’s counsel. They establish this as the uniform construction. In questions involving the existence of a corporation, in questions involving merely the administration of corporate functions1, oi' duties which touch only individual rghts, such as the election of officers, admission of a corporate officer, or member, and the like, the writ may isse at the suit of the Attorney General, or of any person or persons desiring to prosecute the same.”
Tbe Supreme Court of Illinois in a ease of the People ex rel. Jones v. North Chicago R. Co.., 88 Ill., 537, in a well-considered opinion, clearly pointed out the difference between an offense against the public where the state alone may punish or waive its right to’ do so, and cases affecting private or individual rights, such as “those which merely affect the administration of corporate functions without affecting the existence of the corporation.” In the later-case it was held that the courts ma]1- interpose on a proper showing.
We therefore conclude that information in the nature of quo warranto brought against individuals to inquire by what right they use or exercise the liberties, franchises, and privileges of a corporation may be brought on behalf of the state on the relation of any person or persons having an interest injuriously affected.
[4] We are now brought to a consideration oí the sufficiency of the petition. It is first contended by appellant that the information merely charges the conclusions of the pleader, which, if true, are unnecessary and irrelevant, and that the relator expressly denies and repudiates any suggestion that the defendants, or any of them, had ever entered into, usurped, or had possession of any office, liberty, privilege, or franchise.
It is to be conceded that the information should do more than assert a mere claim to the right to exercise an office or franchise, and that possession and user of the office by other than relator without color of right is essential to be pleaded. The principle is well established as applied to usurpation of office in private corporations and the usurpation by persons claiming public office as well. The rule in this respect is thus stated in 17 Enc. PL & Pr. 407:
“Quo warr'anto, or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, or who has been admitted thereto.”
See, also, Spelling on Inj. and Other Extr. Bern. § 1774. We cannot agree, however, that appellants’ objection to the petition is well taken in this respect. Appellants rely upon the case of People, on the relation of Taylor and others, v. Thompson, 16 Wend. (N. Y.) 655, which was an information brought by the Attorney General of New York, charging the defendants with claiming, using and exercising the liberties, privileges, and franchises, of being a body politic and corporate, without being legally incorporated. The court in its opinion pointed out that the language of the statute was derived from the statute of Anne, and while providing that an information in the nature of quo warranto might be filed “where any person shall usurp, intrude into, or unlawfully hold any public office, civil or military, or any franchise, * * *” yet something was obviously required beyond a claim to the office or the exercise of a franchise to authorize the institution of proceedings. In the case at bar, however, the information, after first setting up facts showing the organization of the relator corporation, represented that the respondents undertook to act together and to exercise corporate functions in the name of the relator, and caused to be published a notice calling a meeting of the stockholders of the relator; that the stockholders held a meeting at Deming, N. M., on the date fixed, at which they claimed to have elected respondents, except two named, as directors of the relator, and caused minutes to be made and entered in a book as minutes of the said relator corporation, and elected officers of said corporation for the purpose of transacting business as a corporation in the name of the relator, and caused to be issued certificates of stock in the name of the relator, and attached thereto a false and fraudulent seal with the name of the relator engraved thereon, and caused to be exectued certain false statements appointing a resident agent, for whom service of process could be had, and caused same to be filed with the secretary of the territory and later with the corporation commission of the state, and, assuming to exercise corporate powers in the name of the relator, caused to be issued certain false and fraudulent powers of attorney.
After continuing with other allegations pertaining to the status of one of the respondents as a stockholder, the information concludes with a general allegation as follows:
“All of which liberties, privileges, franchises, and authority the respondents have usurped and do still usurp upon the state of New Mexico, and have exercised and are still assuming to exercise in said state, without being legally authorized so to do, and without any warrant, grant, or authority of law, to the great damage and prejudice of the relator and of the state.”
We deem these several allegations to be sufficient as evidencing user and possession, and therefore consider this objection to the information not well taken.
The next objection urged to the information is that the relator, if entitled to any remedy, has mistaken its remedy; that it should have brought mandamus or bill to permanently enjoin. This position of the appellants is based upon the contention that the information alleges facts which, if true, show the respondents were not, except Haskell, members of the corporation de facto, and that their acts were merely pretensions and claims under conspiracy. The argument of appellants upon this question is primarily addressed to the proposition that because the petition is said to treat the respondents as usurpers, and because the attitude of counsel for relator was that the respondents were outsiders, that relator has therefore no right to maintain the action, because under the allegations of the information respondents would neither be de jure nor de facto officers. Authority is cited in support of appellant’s position to the effect that where an election of officers is merely colorable, so as to be really no election at all, it does not confer even a de facto position upon the office holders, and that the remedy of relator is not quo- warranto but mandamus.
Wei do not desire to unduly lengthen this opinion by discussion of the remedies of mandamus and injunction, either of which might be available under certain circumstances. The question before us at this time, however, is whether an information in the nature of quo warranto is available. We have pointed out the allegations of the information and it is clear that it does charge that the privileges, franchises, and authority used and possessed by the respondents have been usurped and are still being usurped without legal authority. The difficulty of appellants apparently arises out of the failure to appreciate that the information in this case charges usurpation of the franchises o£ the corporation. We have pointed out in this opinion that the mere claim to exercise an office or corporate right, privileges, or franchises would not be sufficient, but that user and possession must be attendant circumstances. The necessity for the presence of something more than a claim to the office or franchise is clearly pointed out by the Supreme Court of Wisconsin in the case of Mylrea, Attorney General, v. Superior & St. C. Ry. Co., 93 Wis. 604, 67 N. W. 1138. We add this authority to the authorities already cited in this opinion because, while construing a Wisconsin statute, it points out that the language of the statute is traceable to the statute of Anne, and the opinion clearly shows that there may be a usurpation of the franchises as distinguished from the office. We agree that usurpation oi the offices of the corporation by the respondents may not be established by the pleadings and that for this reason the action might not lie against the respondents as officers, were that the sole question involved, but the petition in this case clearly charges usurpation and user of the franchises of the corporation, and, as we have pointed out, sufficient acts are set out to indicate that there has been a user and possession of the franchise of the corporation, if not the usurpation and user of the offices themselves. The case of People v. Thompson, 16 Wend. (N. Y.) 655, heretofore cited, is also instructive on this point.
To concede the contention that men associated for the purpose of usurping corporate functions or powers must be directors or officers either de facto or de jure of the corporation, in order to authorize an ouster by proceedings in quo warranto, would he to deny a remedy where perhaps none other might be adequate or available. It is clear that quo warranto lies to oust usurpers from the attempted exercise of corporate frandhises1 and powers not granted by the state. Where usurpers set up a pretended corporation where none exists, the remedy is also available, and in the latter case, there being no corporation, clearly they could not be either de facto nor de jure officers of such corporation which has no existence, yet the state doubtless would have the right to oust them from the exercise of the usurped privileges or the franchises of the alleged corporation, and it would be the duty of the state so to do in order to protect the public against the fraud of the usurpers. Mr. High in his work on Extraordinary Legal Remedies, at section 655, says:
“It is to be borne in. mind that tbe question whether an information will lie in the case of a corporate' office is dependent upon the fact of possession or user of the -office or franchise, and unless an actual user can be shown, in addition to a claim to the office, the information will not lie.”
This we believe to be a clear statement of the situation as applied to the facts of the case under consideration. It is, in other words, not a question alone of the possession or user of the office, but is a question as to the possession or riser of the franchise, which is both charged and admitted by the pleadings. Therefore the failure to show user and possession of the office is not necessarily fatal, where there is both user and possession of the franchise. In the light of all that we have had to say in this opinion, we cannot agree that this point now under consideration is well taken.
[5] Appellants also contend that a bond is a prerequisite to the filing of an information. AA7e deem it unnecessary to enter into the discussion of the merits of this question, as we do not believe that appellants can be heard upon this point because they are not prejudiced by the ruling of the trial court in the matter of the bond, however erroneous such ruling might have been. It is axiomatic that an error without prejudice is always harmless error. See Elliott on Appellate Procedure, § 632. The same author, at section 631, points out that harmless errors are generally such as concern matters of procedure, while errors affecting primary right are generally prejudicial. A primary right is said to he a fundamnctal right, as contradistinguished from rights which exist by virtue of rules established for the conduct and regulation of matters of procedure. Clearly the matter of the bond is a matter of procedure, unless by the provisions of the statute 4th and 5th, AA^illiam and Mary, requiring a recognizance from the person or persons procuring such information in the penalty of 20 pounds, a common-law rule has been established having force and effect under our practice. It is pointed out by appellees in this connection that the statute 4th and 5th, AATLliam and Mary, chapter 11, referred to, had reference to criminal proceedings, and because of the fact that quo warranto is no longer considered a criminal proceeding, but is to loe treated as a civil proceeding, that the statute 4th and 5th, AArilliam and Mary, has no application to the proceeding of quo warranto as it now exists in this jurisdiction.
AYIth this view of the matter we are disposed to agree, and we therefore hold that the failure to require a bond of the relator in a proceeding on an information in the nature of quo warranto, if erroneous, does not amount to prejudicial error where, after judgment of ouster against the respondents, such judgment is affirmed on appeal.
[6] Appellants further contend that the district court of Bernalillo county was without jurisdiction to try the case, basing their contention in this respect upon the ground that informations in the nature of quo warranto are criminal as to matters of pleading and jurisdiction, for which reason the district court of Luna county alone had jurisdiction of the respondents, or of such of them as resided there. Mr. High, in his work on Extr. Leg. Kem. (3d Ed.) § 591, saj^s:
“The object of the information, as now employed in the courts of England, and America, is substantially the same as that of the ancient writ of quo warranto, and while still retaining its criminal form, it has long since come to be r'egarded, in substance, as a civil proceeding, instituted by the public prosecutor, upon the relation of private citizens for the determination of purely civil rights.”
We therefore find no merit in the contention that the district court of Bernalillo county was without jurisdiction.
[7] It is also contended that an information in the nature of quo warranto must be drawn with the certainty of an indictment. In this contention, however, appellants are again in error. The rule is thus announced by Spelling (2d Ed.) Inj. and Other Extra. Bern. § 1846:
“Such actions should, in most of the states, be commenced and prosecuted like other civil actions, and are governed in respect to the pleadings by the same rule.”
This author, after pointing out the few jurisdictions which have a different rule, further says:
“With these exceptions, it is thought the principles of good pleading will be found to apply to both parties, as in other actions.”
Again, this author, in section 1852, says:
“Where a number of individuals assume to act as1 a corporation, an information containing a general denial of their right to do so will be sufficient to put them to their plea of justification.”
Likewise it lias been held that a proceeding by information in the nature of quo warranto is usually subject to amendment, it being a civil proceeding, criminal in form only. State v. Gleason, 12 Fla. 190. We therefore conclude that an information in the nature of quo warranto, while criminal in form, need not be drawn with the certainty required of indictments, but that the principles of good pleading will apply to both parties as in ordinary civil actions.
[8] The next proposition submitted for our consideration is that the trial court did not acquire jurisdiction of the person of Luis Huller by any method known to the law. It appears that the trial court overruled motions to quash and a plea to the jurisdiction of the court, which alleged that seven of the respondents were not residents of the state of New Mexico and had not been served with process and had not entered their appearances. Six of these individuals, who were respondents, pleaded over with pleas in bar before Luis Huller filed his plea in abatement under a so-called special appearance, setting up that he was a citizen and resident of Mexico, and that process had not been served upon him personally. It is contended that lie denied the jurisdiction of the court over his person by a properly verified plea raising issues of fact, which should have been and were not determined. This appellant, Luis Huller, contends that the plea in bar filed after the special appearance and plea to the jurisdiction of the person, which was erroneously overruled by the court, and a rule being entered against the pleader to plead in bar, does not waive a plea to the jurisdiction upon appeal, if the pleader is unwillingly forced to plead and does so objecting, protesting, and excepting to the order of the court competing him to plead in bar or stand in default. Other contentions are made which we do not deem it necessary to set out.
By appellees it is contended that any one who desires to appear specialty, for the purpose of objecting to the jurisdiction of the court over his person, must do so without raising any question of jurisdiction over the subject-matter, or any question concerning the cause of action in the complaint or information, or any other question which goes to the merits of the action as distinguished from jurisdiction of the person. The rule of common-law pleading is thus set out in Coke’s Lit. 305:
“I. In good order of pleading, a man must plead to tlie • jurisdiction of tlie court. II. To the person; and therein (1) to the person of the plaintiff and then to the person of the defendant. III. To the count; and IV. To the writ; V. To the action, etc. Which order and form of pleading you shall read in the ancient authors agreeable to the law at this time, and if the defendant misses order in any of these he loseth the benefit of the form.” '
It appears that Mr. Luis Huller joined in the motion to quash the service, and in a motion to vacate the order of the trial court allowing service upon an alleged agent for service of process, and the motion to quash the information and in the alternative to strike it from the files’. Each of these appearances was denominated a special appearance; but the question naturally arises as to whether the appearance was in fact a general one and not a special appearance. This court, held, in the case of Dailey v. Foster, 17 N. M. 377, 128 Pac. 71, that;
"Whether the appearance is general or special is governed by the purpose and object of the appearance. If the appearance be for the purpose of objecting to the jurisdiction of the court and is confined solely to the question of jurisdiction, then the appearance is special, but any action upon the part of the defendant, except to object to the jurisdiction which recognizes the case in, court, will amount to a general appearance.” Citing 3 Cyc- 504.
Under this rule, as heretofore announced, it must be evident that this respondent has entered a general appearance, for by the several appearances, though denominated special, he has brought into question matters other than the jurisdiction of the court. These pleadings are somewhat lengthy and we will not consider them in detail.
We believe the first objection to the position of this respondent is that his several pleadings show that he raised questions of fact not going to the jurisdiction of the court, the first being that the writ was not served upon the respondent, but upon one Arthur Temke, who was not and never had been a resident agent of the respondent. It was next urged that the writ should be issued in the name of the state of New Mexico, whereas it appears to have been issued upon the order of the court. It was also contended that by the statute of the state service of summons must be made by delivering a copy of the process or papers to be served on defendant, or, in case of the defendant refusing to receive such copy, the service'should be made by delivering a copy to some person residing at the usual place of abode of the defendant, and if such person be not found, then that service should be made by posting copies in some public place on the defendant’s premises. These several grounds were set out in a motion to vacate an order allowing service upon thej resident agent Temke. The other grounds of the motion attacked the jurisdiction of the court over the cause of action. The same grounds were also urged by the respondent Huller in support of a special appearance and motion to quash service. Subsequently Huller and others joined in a motion to quash the information or to strike the same from the files, setting out .first, that the court had not authority in law to entertain an information in the nature of quo warranto; that, while an information upon the relation of a private person or corporation cannot be filed without leave of court, no leave was given to file such an information, and that the information is filed under the name of a private relator and not in the name of the state; that the court had no jurisdiction unless the purpose 'of the proceeding was to inquire into the right or to redress a wrong concerning the state. It was also contended that the leave given to file the information was on behalf of the state, whereas the proceeding was brought by private attorneys without competent authority to represent the state; that the Attorney General was without authority to waive the Constitution and give his consent to a private corporation or person to bring suit on the relation of the state, or to delegate his official duties to private parties; that tine said information is a different information than that which the petitioner asked leave to file; that the relator seeks judgment of ouster against respondents for alleged usurpation of privileges, liberties, and franchises not created or recognized by the state; that the verification was made by one not authorized by law to make the same.
It thus becomes evident that again this respondent raises questions not pertaining to the jurisdiction of the court over the cause of action, and by so doing must necessarily be held to have entered a general appearance in the cause.
This court also held, in the case of Charles F. Fowler v. Con. Cas. Co., 17 N. M. 188, 124 Pac. 479, that:
“When a party moves to set aside a default and judgment upon the ground that the court had no jurisdiction over its person because there has been no valid service of summons, it must occupy that ground exclusively. * * *”
Clearly the respondent, by his motion to vacate the order of the trial court entered on the 16th day of April, 1914, and by his subsequent motion to quash service, set out grounds other than jurisdictional, and must be held to have entered a general appearance in the cause.
Our conclusion in this respect makes it unnecessary for us to consider the point raised by appellee that this respondent subsequently entered a general appearance by joining in the demurrers and other pleadings filed by his associate respondents.
[9] The relator was given judgment of ouster upon a motion for a judgment on the pleadings, and it is contended that because there were issuable facts to be determined and because the respondents’ pleas constituted a justification, that the court fell into error in granting the prayer of the relator for a judgment on the pleadings The pleadings in this case cover over 200 pages of the record, and it is impossible to thoroughly discuss this contention.
Mr. High in his work on Extra. Leg. Rem. at section 718, in this connection says:
“From the nature of the quo warranto information for the usurpation of an office or franchise, which calls upon the respondent to show by what warrant he exercises the functions of the office, it follows of necessity that non usurpavit, or a simple plea of not guilty,, does not constitute a sufficient plea, since it discloses no title to the office, which is the very gist of the controversy.”
Tbe same author, at section 661, says:
“If, however', the action is instituted against individuals, charging them with usurping the privileges and franchises of a body politic and corporate, it is not a sufficient return by such respondents to show the act of incorporation, and that they own a portion of the capital stock of the company, being members thereof, and that as such members in connection with other members they have exercised the franchises in question.- In such case the retur'ns should also show that the respondents are empowered by the corporation to do the acts in question, and that their action is binding and obligatory upon the corporation itself, since otherwise it is merely their individual action.”
At section 716, this author further says:
“When the proceedings are instituted for the purpose of testing the title to an office or franchise, the proper' course for a respondent is to either disclaim or to justify. If he disclaims all right to the office, the people are at once entitled to judgment as of cour'se. If, upon the other hand, the respondent seeks to justify, he must set out his title specially and distinctly, and it will not suffice that he alleges generally that he was duly elected or appointed to the office, but he must state specifically how he was appointed, and, if appointed to fill a vacancy caused by the removal of a former incumbent, the particulars of the dismissal as well as of the appointment must appear. The people ar'e not bound to show anything, and the respondent must show on the face of his plea that he has a valid and sufficient title, and, if he fails to exhibit sufficient authority for exercising the functions of the offce, the people are entitled to judgment of- ouster.”
In 32 Cyc. p. 1454:
“An information in quo warranto is sufficiently answered by a plea which sets out all material facts relative to the questions properly raised by the infirmation; but a plea is in sufficient if it contains nothing upon which a material issue can be formed, and in such case judgment may be render'ed on the record, without any evidence being introduced.”
In 32 Cyc. p. 1455, is also the following:
“To a quo warranto charging an illegal exercise of corporate franchises, the plea should as a general rule be either of justification or a disclaimer, and the plea of justification must contain allegations of all facts as are necessary to show authority for the use of the franchises.”
With these statements of principle in mind, we turn to an inquiry concerning the propriety of the action of the trial court in sustaining a motion for judgment on the pleadings. Clearly the question before the trial court was whether the respondent had justified or had failed to do so. All the respondents did not join in the same answers. It appears that resjiondents admit that there were issued by them some certificates of stock in the name of the relator, that they held a meeting, but that they denied ever having had control of the record, seal, or stock certificate book. They deny that they fraudulently created a seal, record, or stock certificate book, but they fail to set out the facts justifying the validity of their acts in these respects. Generally speaking, respondents seem to largely rely upon the fact that because Luis Huller, now deceased, was at one time the owner of practically all of the stock of relator corporation,, and that he died possessed of such stock, which came into the hands of his administrators, that the burden of the responsibility to prove that he had parted with ownership in this stock was shifted to the relator. In this, respondents have lost sight of the fact that the burden rests upon them at all times to justify their alleged acts of usurpation. There is no doubt concerning the right of the owner of the stock in any corporation to become registered as such upon the books of the corporation and to compel such registration if he is entitled thereto. It does not appear that the respondents, or either of them, except Haskell, who was admitted to be the owner of 1,000 shares, were registered as stockholders, or that they sought registration. They seemingly elected to issue new shares of stock, under new seal, pursuant to authority of the board of directors organized by them, and to set up a rival corporation thereby, without establishing any claims that they may have had.
The manner in which Luis Huller, deceased, parted with his stock is set up in the pleadings by incorporation therein of two certain contracts entered into by Luis Huller, deceased. These contracts show that Luis Huller, deceased, recognized ownership of the stock in one S'isson, by virtue of the contract of July 6, 1889, and thereafter recognized the title to the same stock by virtue of the contract of February 19, 1890, in one Faurot. The rejoinder of S. Lindauer admits that the contracts in question were entered into, but denies that the said Faurot was the holder of said stock, other than 5,009 shares, as security for sums of money previously loaned and advanced to the said Huller. Appellants or respondents contend that their pleadings specifically set forth the ownership of the shares of stock of the corporation. They say that Luis Huller was the original owner of the shares of stock; that he did not at any time transfer or dispose of such shares of stock so owned by him, and that ho died the owner of all such stock, except the 5,009 shares referred to. They attempt justification upon the ground that Luis Huller, one of the respondents, as administrator and executor, is the owner and holder of such shares of stock originally issued to his father, Luis Huller, and that, because of these allegations made under oath, the relator, by its motion for judgment on the pleadings, necessarily admits the truth thereof, and cannot be heard to deny them.
It is to be borne in mind, however, that the pleadings of the relator point out how Luis Huller, Sr., parted with the stock in question under the contracts referred to, and it would seem to be clear that the statement of facts thus brought to the attention of the court would necessarily require something more than denial to relieve the respondents of their legal duty to justify. It is not enough for the respondents to say that they are the owners of the stock in the corporation, when their stock in question is shown by contracts incorporated in the pleadings to be owned by others, and respondents did not meet their full responsibility in the matter by justification of this character. We therefore conclude that the motion of the relator for judgment on the pleadings was properly granted.
It is next urged that the court committed error in not granting the demand of the defendants for a jury trial. There is considerable doubt in our minds as to the right of the respondents to demand a trial by jury in any event, but we are not called upon to enter into the merits of the question, because, even though the right existed, if there is no question of fact to be submitted to the jury and the court was correct in its ruling on the motion for judgment on the peladings, the respondents would not be entitled to a jury trial, and cannot be heard to complain of this error assigned.
It is next urged that the appellee in the trial court contended that the proceeding is authorized by the statute of Anne, for which reason it cannot now be permitted to shift its position and contend for affirmance on any other theory of the pleadings. I-Iaving sustained appellees’ contention as to the statute of Anne haying application to the facts in this case, this assignment becomes of no consequence.
'The concluding portion of the brief of appellants is devoted to a discussion of the charges of conspiracy and of false and fraudulent acts contained in the information. The discussion is general and has application to different assignments of error, which have already been considered and disposed of. It is also argued that the district court, in sustaining relator’s motion for judgment on the pleadings, ignored and did not consider matters of record, and judgment was rendered upon consideration of partial pleadings and matters of record in this case only. We have considered the action of the trial court in sustaining the motion for judgment on the pleadings and have found no error in its action thereupon. We therefore conclude that the judgment of the lower court should be affirmed, and it is so ordered.
PARKER, J., concurs.