Whittier v. Woods

112 P. 408, 57 Or. 432, 1910 Ore. LEXIS 62

• Court: Oregon Supreme Court
• Decided: December 27, 1910
• Status: Published

Opinion

Mr. Justice Eakin

delivered the opinion of the court.

1. Two questions going to the jurisdiction of the court arise: (1) Was the motion to quash a general appearance of the defendant? (2) If not, was the amended return upon the summons sufficient to give the court jurisdiction of the defendant? It is contended that the first and fifth grounds of the motion are attacks upon the complaint, and amount to a general appearance, but this cannot be conceded. The only relief sought is to quash the service of the summons, and the five reasons assigned are only so designated for the purpose of showing the defect in the service. The first and fifth assignments can have no hearing upon the sufficiency of the complaint in deciding this motion. If the mover asks for some relief, which necessarily assumes that the court has jurisdiction of him, it will amount to a general appearance. But, so long as he keeps out of court for every purpose except to question its jurisdiction of him, the appearance is not general. This question is settled by the opinion of Mr. Justice Bean in Belknap v. Charlton, 25 Or. 41 (34 Pac. 758) :

'‘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 * * whether such an appearance by its terms be limited to a special purpose or not. * * If he asks the court to adjudicate upon some question affecting the merits of the controversy, or for some relief, which presupposes jurisdiction of the person, and which can be granted only after jurisdiction is acquired, he will be deemed to have made a general appearance, and to have submitted himself to the jurisdiction of the court, and cannot, by any act of his, limit his appearance to a special purpose. But, if granting the relief asked would be consistent with a want of jurisdiction over the person, he may appear for a special purpose without submitting himself to the jurisdiction of the court for any other purpose.”

To the same effect are Meyer v. Brooks, 29 Or. 203 (44 Pac. 281: 54 Am. St. Rep. 790), and Winter v. Union Packing Co., 51 Or. 99 (93 Pac. 930).

2. In this motion the defendant asks for no other relief than to quash the service of the summons, which can only be granted for some defect in its substance or in the return of service, whereby it is insufficient to give the court jurisdiction of the defendant. The defendant cannot question the insufficiency of the complaint by such a motion, nor the court consider or grant to defendant any relief by reason thereof. Neither can the court strike out the motion for want of service, as there is no law requiring the service of pleadings in the justice’s court.

3. Prior to judgment the plaintiff is in court and must take notice of pleadings filed. If the case is called up in the absence of counsel, the court should give them notice of the hearing, as counsel are not presumed to sit continuously in the court which is always open. Section 924, B. & C. Comp. We must treat the judgment as void, as the justice did in setting it aside (White v. Brown, 54 Or. 7, 12: 101 Pac. 900) ; the record not showing that the court had jurisdiction of the defendant.

4. However, the motion of plaintiff thereafter, asking leave of the court for the constable to amend his return of service, was a confession that the first return was not sufficient to sustain the judgment, and the defendant was not, therefore, subject to the jurisdiction of the court by reason of such appearance.

5. As to the effect of the amended return, Section 55, B. & C. Comp., provides that the copies of the summons and complaint shall be delivered “to the defendant personally or, if he be not found, to some person of the family,” etc. Therefore service upon a member of the family is a substituted service, in which the defendant is presumed to be within the jurisdiction of the court, and receives the notice so served, and it is deemed an actual service upon him. But such service is a statutory deviation from the common law, which required personal service. The statute must be fully complied with and can be resorted to only when the defendant cannot be found. 32 Cyc. 461; 19 Am. & Eng. Enc. Law (2 ed.) 620. This is the holding in Trullenger v. Todd, 5 Or. 39, in which Mr. Justice Prim says:

“The statute, in providing how service shall be made, evidently implies that when a summons is placed in the hands of an officer for service that he will use ordinary diligence, at least, to find the party against whom the summons is issued, in order that he may make personal service upon him, but after using ordinary diligence, if he should fail to find such party, constructive (substituted) service may be made — and, when such service is made, the certificate should contain the fact that the party could not be found.”

And, in the absence of such statement in the certificate, the service was held void. This decision was approved in Hass v. Sedlak, 9 Or. 462, 464, holding that the certificate was a nullity. It is also approved in Settlemier v. Sullivan, 97 U. S. 444, 447 (24 L. Ed. 1110). The statement in the certificate, before us that “I could not find said defendant on the day said summons was delivered to me” does not show a compliance with this requirement. It is no indication that the officer did not then know where defendant was within the county, but only that he did not have time that day to search for him. The law contemplates that if defendant is within the county and not in hiding — that is, if he can, by the exercise of diligence, be found within the county — the officer must serve him personally. The return was insufficient to give the court jurisdiction of the defendant, and the motion to quash the service should have been allowed, it being insufficient to give the court jurisdiction of the defendant.

The judgment of the circuit court will be reversed; the writ of review sustained; and the cause remanded to the lower court, with directions to vacate and set aside the judgment of the justice court, and for such further proceedings as may be proper, not inconsistent with this opinion; petitioner to recover his costs and disbursements. Reversed.