Mutzig v. Hope

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 370 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 371 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 372 Action by R.B. Mutzig against Ralph A. Hope for rent. From an order denying defendant's motion to vacate a default judgment, he appeals. AFFIRMED. This case arises upon a motion of the defendant, Hope, to vacate a default judgment which was rendered against him in a non-tortious transitory action on the ground that the court was without jurisdiction of his person. From an order denying the motion, the defendant appeals. On December 17, 1931, the plaintiff, Mutzig, brought an action in the circuit court of Oregon for Multnomah county to recover rent owing by defendant as lessee of lands in Deschutes county, Oregon. The complaint was in the usual form. A summons, also in usual form, was issued and the return discloses that service was made upon the defendant personally in Lane county by the sheriff of that county. The defendant failed to appear and after the expiration of twenty days, upon motion of the plaintiff, a default judgment was entered in favor of the plaintiff. The judgment was entered on February 10, 1932. On February 9, 1942, upon motion of *Page 373 the plaintiff, supported by affidavit, and under the provisions of O.C.L.A. § 6-802, an order was duly made and entered in the circuit court for Multnomah county renewing the judgment, directing the reentry thereof, and that execution issue thereon. On October 19, 1943, the defendant filed a special appearance and moved for the cancellation of the judgment. We quote from the motion: "COME NOW the Defendant, Ralph A. Hope, by his attorney, D.T. Bayly, and points out to the Court that the judgment roll in the above entitled case shows in the Complaint without extrinsic evidence that the action is in nature transitory, but not founded on a tort and in the Proof of Service of Summons, that the Summons and Complaint were served by a Deputy of the Lane County Sheriff within Lane County, on the Defendant, Ralph A. Hope, on December 14, 1931, [Error — the correct date is December 19, 1931.] "WHEREAS, by Section 1-403, Oregon Code 1930, in effect at the time of the above service of Summons and Complaint, as interpreted by Dunham vs Schindler and Company, 17 Or. 256 and Brown vs Deschutes Bridge Company, 23 Or. 7, a Summons and Complaint served in a county other than where the non tortious transitory action is filed does not give the court jurisdiction and judgment based upon such a service is void. "WHEREFORE, * * *." On October 28, 1943, the plaintiff filed an appearance in opposition to application to cancel judgment wherein he set forth the facts substantially as stated above. It was the contention of the plaintiff that if the cause was commenced in the wrong county, the defendant had waived any objection thereto by reason of his failure to appear prior to the entry of the default *Page 374 judgment. On April 10, 1944, the motion to vacate judgment was denied and the defendant appeals.