State ex rel. Dial Press, Inc. v. Sisemore
State ex rel. Dial Press, Inc. v. Sisemore
Opinion of the Court
This is an original proceeding in this court in mandamus to require defendant, the circuit judge for Klamath county to quash the service of summons and complaint upon petitioner.
An action was brought in the trial court against relator, a New York corporation, as defendant to recover damages alleged to have resulted from the publication of a book by relator. A copy of the summons and complaint was served on the Corporation Commissioner. On motion of the plaintiff in that action, an order of default was entered. Thereafter, relator filed the following motion:
“MOTION TO QUASH SERVICE OF SUMMONS AND TO VACATE AND SET ASIDE ORDER OF DEFAULT
“Defendant Dial Press, Inc., appearing specially and for the purpose of this Motion only, and without submitting itself generally to the jurisdiction of this Court, and for no other purpose, moves the Court for an order quashing the alleged service of summons upon this defendant and for an order vacating and setting aside the Order of Default heretofore entered herein for the reason and upon the ground that this defendant was never served with a copy of the summons or complaint, no copy of the summons or complaint was mailed or sent to it and that this Court never secured jurisdiction over this defendant.”
The foregoing motion was denied on the ground that in filing the motion relator had made a general appearance and thereby conferred on the court juris
A motion to quash coupled with a motion to vacate a judgment on the ground that the court had no jurisdiction, without more, does not constitute a general appearance.
In the Annotation: Motion to Vacate Judgment or Order as Constituting General Appearance, 31 ALB2d 262, 294 (1953), the author comments on the AMstrom case as follows:
“It would seem * * * that the court’s conclusion as to the general appearance by the purchaser was based on the original statement of his attorney before the court at Burns, rather than upon the subsequent formal motion to vacate the order in question.”
We agree with this interpretation of the AMstrom case and so viewed it is clearly distinguishable from the case at hand. In the present case, relator expressly and clearly limited its appearance for the purpose of quashing the service of summons and for an order vacating the order of default. Belator did not call upon the court to adjudicate the merits of the controversy which the plaintiff in the original action attempted to initiate by the service of summons on the relator. Not having sought such other relief, relator did not subject itself to the jurisdiction of the court. In AMstrom v. Lyon et al, supra, and other Oregon cases which have held that the court did obtain jurisdiction, the defendant sought the aid of the court so as to make possible an adjudication of the merits of the case which led up to the judgment.
Let a peremptory writ of mandamus issue requiring the trial court to vacate the judgment.
See generally, Developments—Jurisdiction, 73 Harv L Rev 911 at 991 (1960); Note, The Retroactive Effect of a General Appearance on a Prior Default Judgment, 19 Rocky Mt L Rev 289 (1947).
Coleman v. Meyer, 94 Or Adv Sh 81, 493 P2d 98 (1972); Mills v. Feiock, 229 Or 618, 368 P2d 327 (1962); Ahlstrom v. Lyon et al, 169 Or 629, 131 P2d 219 (1942); Woodburn Lodge v. Wilson, 148 Or 150, 34 P2d 611 (1934); Anderson v. Guenther, 144 Or 446, 22 P2d 339, 25 P2d 146 (1933).
Reference
- Full Case Name
- STATE ex rel DIAL PRESS, INC. v. SISEMORE
- Status
- Published