Keyser v. Pollock

BASKIN, J. This is an action by plaintiff, who is the respondent, on a promissory note which by its terms was payable on the 1st day of February, 1893. The complaint was filed in the court below on the 23d day of November, 1895. This endorsement was made on the back of said complaint by the clerk: “Don’t issue till fees paid. D. C. D.” Summons was not issued until December 8th, 1897. It was served on the defendant, Samuel J. Pollock, who is the appellant, December 20, 1897. On the 27th of December, 1897, defendant’s attorney filed a demurrer to the complaint, stating as the ground thereof, that, “The supposed cause of action stated in plaintiff’s complaint, if any cause of action therein be stated, is barred by the provisions of Sec. 3143, Comp. Laws of Utah, 1888.” The [375] period of limitation under said section was four years from the date at which the cause of action accrued. Within a short time after filing said demurrer, defendant filed in the trial court a motion for leave to withdraw his demurrer and appearance, for the purpose of objecting to the summons and its sufficiency, and to the jurisdiction of the court. This motion having been denied, and the demurrer overruled, the defendant, on the 20th of December, 1898, filed the following answer: “Defendant, answering plaintiff’s complaint herein, alleges that the court has no jurisdiction in the subject-matter of this action, or of the person of the defendant, and that such fact does not appear on the face of the complaint; wherefore, defendant prays that this action may be dismissed, and the plaintiff take nothing thereby. (Signed) “Frank Hoeeman, “Attorney for Defendant.” Thereupon plaintiff moved for judgment on the pleadings. This motion was granted and judgment was rendered against the defendant for the amount of said promissory note and costs. From this judgment this appeal was taken by defendant. " The Third Judicial District Coiirt of Utah Territory, in which the foregoing proceedings were had, was a court of general original jurisdiction, and therefore had jurisdiction of the subject-matter of said action, and by the demurrer and general appearance of the defendant, that court obtained jurisdiction of his person. There was no abuse by the trial court in refusing to permit the defendant to withdraw his demurrer and general'appearance in the case for the purpose of objecting to the regularity of the summons. If the defendant desired to object to the validity of .the summons, he should have entered a special appearance for that purpose. By his [376] failure to do so, and by entering a general appearance and filing an answer to the complaint, he waived all objection to the summons. Houtz v. Gisborn, 1 Utah, 173-177; Needham v. Salt Lake City, 7 Utah, 319: Jones, et al., v. Stevens, 1 Colo. 67; Wyatt v. Freeman, 4 Ibid. 14; Suydam v. Pitcher, 4 Cal. 280; Hays v. Shattuck, 21 Cal. 52; Pixley v. Winchell, 7 Cow. (N. Y.) 366; Wright v. Jeffreys, 5 Cow. (N. Y.) 15; 2 Enc. of Pl. & Pr. p. 644, Sec. 2 and cases there collated. In the case in 7 Cowan, it was urged by defendant’s counsel, in his argument of a motion to set aside a capias ad respondendum, that “It is never too late to take advantage of an irregularity like this, so long as the party knows nothing of it. The process is a nullity.” The court in overruling the motion, said, that, “Without saying whether this writ is absolutely void, we are clear that it cannot be set aside at this stage of the cause. The defendant has taken a step, by which he is regularly in court, whether there be any process or not. We will not interfere, merely because the party acted in ignorance, that the process was void.” This brings us to the question, whether the action is barred by the provisions of Sec. 3134 of the statute of Limitations, of 1888. Sec. 3129, provides that, “Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where in special cases, a different limitation is prescribed by statute. ” The period prescribed for the commencement of an action on a promissory note, under Sec. 3143, is four years. The complaint was filed within that period, but summons was not issued until after its expiration. [377] Sec. 3302, Comp. Laws 1888, which was in force at the date of filing said complaint, is as follows: “Civil actions in the courts of this territory are commenced by filing the complaint.” This action has no other basis than said complaint, none other having been filed, and therefore must have been commenced at the filing of the complaint. When defendant entered his appearance and demurred, he became an active participant in an action commenced at the date of the filing of the complaint, and by his demurrer voluntarily submitted himself to the jurisdiction of the court and invoked an adjudication of the case. This view is fully sustained in the case of Needham v. Salt Lake City, Supra. It follows that as this action was commenced within four years from the time that plaintiff’s cause accrued, that it was not barred. The judgment of the lower court is therefore affirmed at the cost of the appellant. Bartch, C. J., and Miner, J., concur.