Silver City Mercantile Co. v. District Court of Utah County

GIDEON, J. Plaintiff asks this court for a writ of mandate directing the [367] district court of Utab county to vacate an order dismissing an appeal from the justice’s court of Provo City. The following facts appear from the affidavit for the writ: In June, 1918, the plaintiff filed a complaint against Robert Sidley and Mrs. Bertha Warburton Sidley in said justice’s court. The charging part of the complaint, as set out in the affidavit, is as follows: “Plaintiff complains of the defendants, and for cause of action alleges: That on between the 17th day of July, 1915, and the 31st of October, 1916, at Silver City, Utah, defendants became indebted to the plaintiff in the sum of $201.10 on account for goods, wares-, and merchandise sold and delivered to the defendants by the plaintiff at defendants’ special instance and request; that defendants have not paid the same or any part-thereof; that payment has been requested, but defendants have failed, neglected, and refused to pay the same.” Prayer for judgment. On October 15th of the same year said defendants Sidley appeared specially in the justice’s court, and, limiting their appearance for the purposes of the motion only, moved the court to dismiss the action upon the following grounds: “That this court has no jurisdiction of the person or subject-matter of this action for the reason, that, this court being a court of inferior jurisdiction, the jurisdiction of the court as set out in section 3668, Compiled Laws of Utah 1907, must appear affirmatively upon the face of the complaint as required by section 3685, Compiled Laws of Utah 1907, and that the same nowhere appears upon the face of the complaint filed in this action.” Sections 3668 and 3685 are now sections 7426 and 7447 in the 1917 compilation of our statutes. The motion was granted, and a judgment dismissing the action entered. Thereafter the plaintiff appealed from that judgment to the district court of Utah county. Said defendants again specially appeared in the action in the district court and filed a motion to dismiss the appeal and alleged grounds for the same as follows: (a) That said district court has no jurisdiction; (b) that no appeal lies from the order of the justice’s court dismissing the action; (c) that the justice’s court has no jurisdiction of the purported cause of action set out [368] in the amended complaint; (d) that the said justice’s court had no jurisdiction of the defendants or either of them. The district court, in August, 1920, granted the' motion and made an order dismissing the appeal. Comp. Laws Utah 1917, § 7426, relating to the place of trial and where actions in justices’ courts shall be commenced, provides, among other things, as follows: “Actions in justices’ - courts must be commenced, and, subject to the right to change the place of trial, * * * must be tried: 1. If there is no justice’s court for the precinct or city in which the defendant resides, in any city or precinct of the county in which he resides; * * * 6. when the defendant is a nonresident of the county, in any precinct or city wherein he may be found; 7. when the defendant is a nonresident of the state, in any precinct or city in the state; 8. when a person has contracted to perform an obligation at a particular place and resides in another county, precinct, or city, in the precinct or city in which such obligation is to be performed, or in which he. resides; 9. when the parties voluntarily appear and plead without summons, in any precinct or city in the state; 10. in all cases, in the precinct or city in which the defendant resides.” Section 7447 of the same compilation, relates to pleadings, states that the complaint in a justice’s court must be in writing, must be verified, and must fully allege and set forth -at least one of the grounds mentioned in section 7426 showing that the action is'commenced in the city or precinct as required by the last-named section. Section 7448 provides: “Every judgment made or given on a complaint not legally verified, or that contains no allegation or an allegation that was untrue of the jurisdictional fact required by this section. * * * shall be void. * * * ” Section 7448 was first enacted by the Legislature in 1907 as an amendment to section .3685 of the Revised Statutes of Utah 1898. In the amendment it appeared as a subdivision of said section 3685. In the compilation of 1907 it was inserted as section 3685x. In the 1917 compilation it appears as a separate and independent section." From this it is apparent that the words “this section” refer to the section immediately preceding, namely, section 7447, and that the “ju369 risdietional fact” spoken of means “one of the grounds mentioned in section 7426, showing' that the action is commenced in the city or precinct as required by” section 7426. Admittedly the complaint filed in the justice’s court here in question did not contain any one of the grounds showing that the action was commenced in the city or precinct as required by section 7426. The district court took the view that the failure of the plaintiff to allege in its complaint any one of the grounds showing that the action was commenced in the city or precinct as required by Comp. Laws 1 Utah 1917, § 7426, deprived the justice of the peace of any jurisdiction of the parties and also of the subject-matter involved in the suit, and, upon that theory, dismissed the appeal. In that view we are of the opinion the court was in error. Section 7426 is not directed to the question of jurisdiction of the subject-matter nor of the parties. It is a legislative direction as to the place of commencing actions, also the place of trial of actions begun in such inferior courts. It in no way attempts to limit the jurisdiction of the court or either the subject-matter or parties. If the court has jurisdiction of the subject-matter, the parties can, by their action, either voluntarily or otherwise, waive the objection to the jurisdiction of the parties. Quealy v. Sullivan, 42 Utah, 565, 132 Pac. 4; Beck v. Lewis, 49 Utah, 368, 164 Pac. 480. True it is that section 7448 makes any judgment void entered upon a complaint not verified or which fails .to allege any one of the grounds showing that the action is commenced in the city or precinct set out in section 7426. Such fact, however, in no -way deprives the justice of jurisdiction of either the subject-matter or the parties. Upon appeal from a justice’s court to the district court a case shall be heard anew, and amendments to pleadings may be allowed in the same manner as in actions commenced originally in the district court. Comp. Laws Utah 1917, § 7515. It does not appear in this proceeding upon whom notice was served in taking the appeal from the justice’s court, but it is stated.in the affidavit that an appeal was taken. That [370] being admitted, the entire ease was before the district court for trial de novo. As we have indicated, the failure of the complaint to state any one of the grounds mentioned in section 7426 showing that the action was commenced in the city or precinct as required by said section did not deprive the justice of jurisdiction of either the parties or the subject-matter. For the same reason such failure did not deprive the district court of the same jurisdiction. It may be conceded, as contended for by defendants, that if the justice of the peace did not have jurisdiction of either the subject-matter or the parties, and that such affirmatively appeared upon the face of the complaint, then the appellate court was likewise without jurisdiction except to make an order dismissing the appeal. It may also be conceded that, if the justice had jurisdiction and had been ousted of such jurisdiction upon the filing of an affidavit as required by Comp. Laws Utah 1917, § 7427, the appellate court in such case would not, by the appeal, acquire any jurisdiction over the parties or the matter involved. No such question as that, however, is involved here. At the hearing in this court defendants demurred to the affidavit for writ of mandate on the general ground that the facts therein stated are not sufficient to state a cause of action or to give the relief prayed for. At the same time an answer was filed in which it is stated that the purported appeal was dismissed by the district court for the reason that said court had no jurisdiction to proceed and try the same 2 and render judgment therein; said justice’s court from which the appeal was taken having had no jurisdiction of the said cause of action and having had no jurisdiction of the parties defendant. The district court’s conclusion that it was without jurisdiction for the reason that the justice’s' court was also without jurisdiction either of the subject-matter or the parties, we think, was erroneous. Much of the argument of both plaintiff and defendant is directed to the general proposition that no presumption exists in favor of the • jurisdiction of justice’s 3 courts, but that such jurisdiction must affirmatively [371] appear from tbe record. Such is undoubtedly the rule of law respecting the jurisdiction of such courts, but has it any application to the facts as shown by this record? We think not. In their written briefs both parties have diseusssed the question of whether the appearance of the defendants Sidley in the justice’s court, and also in the district court, was not in fact a general appearance, although designated special. Plaintiff insists that by reason of the relief asked the appearance was a general appearance. While determination of that question is not necessary and can have no bearing in any way upon the question as to whether the court was right in dismissing the appeal, it may nevertheless not be amiss for us to state our views, as it may become important in the further proceedings before the district court. It may be stated as a general rule of law supported by the authorities 4 that an appearance by motion to object to the jurisdiction of the court of the person of the defendant does not constitute a general appearance where such appearance is limited or denominated special. If, however, the objection made is upon other grounds than that of jurisdiction of the person, or upon that ground coupled with other grounds, such would constitute a general appearance. McNab v. Bennett, 66 Ill. 157; Fitzgerald Const. Co. v. Fitzgerald, 137 U. S. 98, 11 Sup. Ct. 36, 34 L. Ed. 608; Elliott v. Lawhead, 43 Ohio St. 171, 1 N. E. 577; Downing v. Gow Bros., 53 Kan. 246, 36 Pac. 355; 3 Cyc. 509. The defendants Sidley, as will be seen, based their motion to dismiss the ease upon the theory that the court was without jurisdiction of either the persons or subject-matter. They also based the motion in the justice’s court upon the same theory. The opinion of this court in Hoffman v. Lewis, 31 Utah, 179, 87 Pac. 167, supports the conclusions herein 5 reached. The writ directing the district court to vacate and set aside the order dismissing the appeal as prayed for is granted; costs to be taxed against defendants Sidley. CORFMAN, C. J., and WEBER and TPIURMAN, JJ., concur.