William Deering & Co. v. Venne

75 N.W. 926, 7 N.D. 576, 1898 N.D. LEXIS 106

• Court: North Dakota Supreme Court
• Decided: May 27, 1898
• Status: Published

Opinion

Wallin, J.

This action originated in a Justice’s Court. A summons issued on the nth day of February, 1896, returnable on the 15th day of the same month, and was delivered toa constable for service. It was returned without being served upon the defendant, with an indorsement thereon to the effect that the defendant was absent from said county. On the return day the justice issued a second summons for publication, under the authority conferred by section 6443 of the Revised Codes. On the return day named in the second summons certain proceedings were had in the action the nature of which are best explained by the entries made in the justice’s docket, which are as follows: “This is an action brought to recover sixty-four dollars and seventy-one cents and interest on a promissory note. Summons issued this nth day of February, 1896. Affidavit for attachment and undertaking filed this nth day of February, 1896, and warrant of attachment issued, summons returnable February 15th, 1896, at 10 o’clock a. m. February 15, 1896, at 10 o’clock a. m., the time set for trial, plaintiff appears by counsel, D. J. Laxdal, who files complaint and affidavit for second summons for publication; the returns of the officer showing that the defendant cannot, after diligent search and inquiry, be found in the County of Pembina, North Dakota. A second summons is accordingly issued directing the defendant to appear at 10 o’clock a. m., March 14, 1896. March 14, 1896, the hour set for trial, J. D. Stack appearing for defendant and D. J. Laxdal for plaintiff, and by consent of parties case adjourned until 1 o’clock p. m., this date. One o’clock p. m., the hour adjourned to, case opened, J. D. Stack appears specially, and files special objections to the jurisdiction of the court herein. Complaint in this case presented this 14th day of March, 1896, by D. J. Laxdal. To my knowledge, said complaint has not before this time been among the papers in this case, and I cannot say whether I have ever seen the same or a copy thereof. The docket showing complaint filed in action and a verification of a complaint appearing among the papers herein filed, the court is of the opinion that a complaint was filed herein on February 15, 1896. Second summons and affidavit of publication filed. Special objections made by J. D. Stack overruled by this court, no answer being filed, and plaintiff having filed the note sued upon in this action (as Exhibit B;) and upon motion of D. J. Laxdal, attorney for plaintiff, it is hereby ordered and adjudged that plaintiff have and recover judgment against the defendant, J. B. Venne, for the sum of eighty-six dollars and seventy-one cents, debt and damages, and the costs and disbursements of this action, amounting to twenty-six dollars and eighty-five cents, making a total judgment of one hundred and thirteen dollars and fifty-six cents, and that the proceeds of the property herein attached be applied on this judgment as prayed for in the complaint. March 14, 1896. H. E. Pratt, Justice of the Peace.”

The special objections to the jurisdiction of the court filed by defendant’s counsel, and referred to in the docket entry, consisted of a seides of objections to the jurisdiction of the justice over the person of the defendant, based upon alleged defects in the proceedings had to obtain service of process. The objections were overruled by the justice. In the view we have taken of the case, it will be unnecessary to determine whether the grounds of the objections filed with the justice were or were not valid. From the judgment as entered by the justice the defendant appealed to the District Court, and in his notice of appeal stated “that the said appeal is taken upon questions of law alone, and from the whole of said judgment, and appellant relies upon errors of law as disclosed by the records.” In the District Court a motion was made in plaintiff’s behalf for a judgment in its favor on the pleadings, upon the ground that the defendant had filed no answer or demurrer in the action. This motion was denied. Whereupon defendant’s counsel made a motion to dismiss the action, concerning which the record is as follows: “The defendant, J. B. Venne, appears specially by his counsel, J. D. Stack, for the purpose of urging the special objection and and exceptions to the jurisdiction of the court as shown by the records of the justice of the peace before whom the case was tried, and said counsel especially limits his appearance to said objections and exceptions and the matter therein stated, and appears herein for no other purpose whatever. J. D. Stack, Attorney for Defendant.” This motion was granted, and, pursuant to the order of the District Court, a judgment was entered dismissing the action, with costs in favor of the defendant. From this judgment, plaintiff has appealed to this court.

In this court the discussion of counsel centers upon a single inquiry, namely, whether jurisdiction of the person of the defendant was acquired by the justice of the peace. It is nevertheless obvious that if the District Com! had, in any manner, acquired such jurisdiction before it entered its judgment of dismissal for want of jurisdiction, such judgment was erroneous, and must be reversed. We are clearly of the opinion that such jurisdiction existed in the District Court. In our opinion, this view may be sustained upon either of two independent grounds, i. e.\ Upon the ground of a voluntary general appearance of the defendant in the action by counsel in the Justice’s Court; secondly, upon the ground that the action was removed to the District Court by an appeal to that court under the provisions of the Revised Codes. It is a well established rule of practice that a voluntary appearance by a defendant entered in an action pending in a court of original jurisdiction, unless such appearance is made specially for the purpose of attacking jurisdiction, is in itself a confession that the court has jurisdiction of the person of the defendant. This rule has been recognized by the legislature and especially made applicable to Justices’ Courts. Revised Codes, section 6635, reads: “An appearance for any purpose (except to interpose or maintain an objection to the jurisdiction assumed under the process) is a voluntary appearance.” Counsel for respondent contends that the first sentence of this section shows that, unless the parties plead in the action as well as appear therein, no action can be commenced. Hence, as he argues, no appearance can be made in any such action. This position would be correct in a case whei-e no action is commenced by the issue or sex-vice of a summons. Under the statute in such case, in lieu of any summons, the legislature has permitted litigants to institute an action by a voluntary appearance befox-e the magisti'ate, followed by pleadings interposed on both sides.

But in the case at bar there was an existing action which had been commenced in the usual and statutory mode of commencing actions, viz. by the issue of a summons. Rev. Codes, section 6635. The action being instituted, and then pending, the defendant, by his counsel, made a voluntary appeai'ance therein, and such appeax-ance was not made specially for the pux-pose of assailing the jurisdiction of the justice. Counsel, being before the court on the x-eturn day, orally entered into a stipulation with respect to the matter of adjoux'ning the hearing of the case to a time which was mutually satisfactory to counsel. Upon this stipulation proceedings were taken by the court by ordering an adjournment of the heaxdng of the case to said time, and thereupon the court, in due form entex-ed in its docket such order, embracing the stipulation upon which it was based. This was a voluntary appearance of the defendant in the action, unguarded by a special appearance, and operated, under the rule of practice we have mentioned, as a concession of jurisdiction over the person of the defendant. After such appearance the special appearance attempted to be made by defendant’s counsel came too late. The attitude assumed by the attempted special appearance was that of a stx-anger to the action seeking to deny that he was a party to the action. This attitude was entirely inconsistent with his former relation to the action in which the defendant had obtained a privilege which is accorded only to a party, viz. that of entei'ing into a stipulation with opposite counsel, and px-ocuring an order of court in the action, which order subserved the convenience of the defendant with respect to a subsequent proceeding in the action. The privileges of a party in an action cannot be accorded to a mere stranger who has never acquired the status of a party. The act of entering into a stipulation with the opposite counsel, and procuring an order of adjournment or other order of the court affecting the proceedings in the action, without qualifying the act by a special appearance, has uniformly been held to constitute a voluntary appearance. See Waldron v. Palmer, (Mich.) 62 N. W. Rep. 731; Auspach v. Ferguson, (Iowa) 32 N. W. Rep. 249; Blackburn v. Sweet, 38 Wis. 579; St. Louis Car Co. v. Stillwater St. Ry. Co., (Minn.) 54 N. W. Rep. 1064; Mahany v. Kephart, 15 W. Va. 609; Hercules Iron Works v. Elgin, J. & E. Ry. Co., (Ill. Sup.) 30 N. E. Rep. 1050; Baisley v. Baisley, (Mo. Sup.) 21 S. W. Rep. 29. Mere technical objections, which tend to defeat rights, are not to be encouraged. Bucklin v. Strickler, (Neb.) 49 N. W. Rep. 371.

The appeal to the District Court was taken under the provisions of Revised Codes, section 6771, et seq. Section 6771 provides that “the appeal is taken by serving the notice of appeal on the adverse party or his attorney,” etc. It will be observed that this section does not prescribe the form of the notice, nor in any way indicate the questions which are to be presented to the appellate court. These omissions of the statute are significant in construing the same, in view of the fact that the former statute regulating appeals, and which wás superseded by the Revised Codes, did prescribe in terms the character and functions of a notice of appeal. The former statute was mandatory, and required the appellant to state in his notice whether the appeal was taken on questions of law or fact, or both. Compiled Laws, section 6129. Under Id. section 6131, the appellant had an election either to demand or not demand a new trial in the District Court, and the character of the trial in the appellate court was determined by the terms of the notice of appeal. All of these provisions were swept away by the revisors of the codes, The law in force when the appeal was taken in the case at bar not only did not, in terms, permit an appeal to be taken to the District Court on questions of law alone, but it stated in plain terms that the action should be “tried anew in the District Court in the same manner as actions commenced therein.’’ Revised Codes, section 6779. When construed with reference to the preexisting law regulating appeals, the conclusion is irresistible that the Revised Codes did not authorize or allow an appeal to the District Court upon questions of law alone. The appellant is chargeable with notice of the provisions of the statutes which were in force when the appeal was taken, and hence will be presumed to have known when he took the appeal that the action would be tried anew in the District Court, and could not be otherwise tried in that court. Under such circumstances, the defendant, by the appeal, must be held to have invoked a trial anew upon the merits of the case. By so doing, the defendant necessarily submitted to the jurisdiction of that court over his person, and thereafter could not be heard to deny that he was a party to the action. In this case the appeal was from the whole judgment. See Dikeman v. Mrotek, (Wis.) 45 N. W. Rep. 118.

Upon these considerations it follows that the District Court was in a position to try the action on the merits, and hence it was error to dismiss the same. 2 Enc. PI. & Prac. 614, note 2. The right of appeal is a statutory right, and being such, it is competent for the legislature, not only to regulate the matter of appeals, but to deny the right for some purposes, and confer it for others. With the expediency of any such legislation the courts have nothing to do. A party is not, however, remediless in a case where no appeal is allowed. A judgment entered without jurisdiction may be attacked in various ways. The most usual mode is to resort to the writ of certiorari. This writ will be available in a case where no appeal is allowed, and where the law affords no other plain, speedy, and adequate remedy. Revised Codes, section 6098.

(75 N. W. Rep. 926.)

The judgment will be reversed, and the action will stand for trial anew in the District Court.

All the judges concurring.