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§ 472. ANNOTATIONS.-Summons and citation.-Jurisdiction.
1. General jurisdiction of state courts coextensive with its sovereignty. 2. Essentials of jurisdiction.
3. Consent as conferring jurisdiction.
4, 5. Consenting or agreeing to a continuance,
16. Answer praying for affirmative relief.
7. Jurisdiction to render personal judgment.
8. Non-resident debtors.
9. Local actions.
10. Transitory actions.
11, 12. Government as party.-Jurisdiction of state courts.
13. Entry of judgment terminates jurisdiction.
14, 15. Publication of notice.
16. Purpose of affidavit for service by publication.
17. Defective service waived by answering over.
18. Time to answer pending motion to quash service.
19. Signification of word "process."
20. Process under Kansas statute.
1. General jurisdiction of the courts of a state is coextensive with its sovereignty, and attaches to all the property and persons within the limits thereof: State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1101.
2. Essentials of jurisdiction.-Jurisdiction may be defined as the right to adjudicate the subject-matter in a given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be before the court; and third, the point decided must be in substance and effect within the issues: Robinson v. Levy, 21 Mo. 498, 117 S. W. 577, 582, quoting from and approving Munday v. Vail, 34 N. J. L. 422.
3. Consent as conferring jurisdiction. -Consent can not confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person: Maxwell v. Frazier, 52 Ore. 183, 96 Pac. 548, 550, 18 L. R. A. (N. S.) 102, quoting the rule stated in 12 Pl. & Pr. 126.
4. Consenting or agreeing to a continuance of a cause from one term to another operates as a waiver to the same effect, and confers complete jurisdiction: Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726; Peters v. St. Louis etc. R. Co., 59 Mo. 406; Seay v. Sanders, 88 Mo. App. 478.
5. Agreeing to reset a cause is likewise a waiver, and confers jurisdiction: Columbia Brewery Co. v. Forgey, 140 Mo. App. 605, 120 S. W. 625, 628.
6. Answer praying for affirmative relief. The defendant waives his right to object to the jurisdiction of the court when he has answered without objection to the jurisdiction, and has claimed affirmative relief: Kitcherside v. Myers, 10 Ore. 21; Municipal Security Co. v. Baker Co., 33 Ore. 338, 54 Pac. 174; O'Hara v. Parker, 27 Ore. 156, 39 Pac. 1004; Killgore v. Carmichael, 42 Ore. 618, 72 Pac. 637.
7. Jurisdiction to render personal judgment.-A personal judgment in an action in personam can only be had after personal service of the defendant or his voluntary appearance in the action. Constructive service, such as service by publication, is ineffectual for this purpose: Silver Camp Min. Co. v. Dickert, 31 Mont. 488, 78 Pac. 967, 67 L. R. A. 940, 3 Am. & Eng. Ann. Cas. 1000. 8. Non-resident debtors. Statutory requirements for obtaining jurisdiction of non-resident debtors, and for attachment of property within the territorial jurisdiction of the court, which requirements are in derogation of the commonlaw mode of personal service, must be strictly complied with. Unless this is done in the case of such non-resident debtors who do not appear, the court acquires no jurisdiction for any purpose whatever as against them or their property. Even in proceedings in rem against the property of non-resident debtors the requirements as to publication or citation as expressly provided by law must be observed, whereby they may have their day in court; otherwise, the court will acquire no jurisdiction
or authority to adjudge a sale of their property to satisfy their debts: Smith v. Montoya, 3 N. Mex. 40, 1 Pac. 175.
9. Local actions, such, for example, as those relating to interests in lands, are usually laid in the district or the county where the subject-matter lies; but transitory actions may be tried wherever personal service can be made on the defendant: State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1101, construing Mont. Rev. Codes, § 6504.
10. Transitory actions.-Actions for injuries to the person are transitory, and follow the person; and therefore, so far as the nature of the action is concerned, one foreigner may sue another foreigner in the courts of a state for a tort committed in another country, the same as on a contract made in another country: Dewitt v. Buchanan, 54 Barb. 31, cited in State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1102.
11. Government as party.-Jurisdiction of state courts.-Where the government invokes the jurisdiction of a court, it submits to that jurisdiction; presenting a claim for its adjudication, it asks that the claim be adjudicated upon its merits, and allowed or rejected accordingly. If it sues, it is subject to the defense of offset upon the amount of whatever claim it shall establish,-a defense which does not controvert the claim, but is in the nature of a limited or quasi cross-suit against it, allowed, not beyond the extent of the affirmative remedy, but only to the extent of defeating that claim: United States v. McDaniels, 7 Pet. 1, 8 L. ed. 587; United States v. Ripley, 7 Pet. 18, 8 L. ed. 593; United States v. Robeson, 9 Pet. 319, 9 L. ed. 142, cited in Union Pacific R. Co. v. United States, 2 Wyo. 170, 191, where the proposition above stated as to jurisdiction, and the effect of submission of a controversy thereto, is approved, and application made of a territorial statute to the measure of relief where judgment goes against the government.
12. The superior court has jurisdiction of an action brought to recover a statutory penalty by one who alleges title in himself and puts in issue by a verified answer the plaintiff's title, although the amount involved is less than $300 (this amount being the limit of
jurisdiction in the justice courts under the California statute, where the title to real property is not drawn in question): Randolph v. Kraemer, 106 Cal. 199, 201, 39 Pac. 533.
For a specific averment in defense of a demand as a basis for certifying the case to a court of higher jurisdiction, see form No. 382, paragraph 3.
13. Entry of judgment terminates jurIsdiction of the court in general: Los Angeles v. Lankershim, 100 Cal. 525, 35 Pac. 153, 556; Ayres v. Burr, 132 Cal. 125, 64 Pac. 120.
14. Publication of notice. It is settled in the state of California that where the statute requires that a notice be published for a designated number of weeks in some newspaper published in the county, the same is fully satisfied by a publication once each week for the designated number of weeks in a daily newspaper published in the county: Sherwood v. Wallin, 154 Cal. 735, 739, 99 Pac. 191, citing People v. Reclamation Dist., 121 Cal. 522, 524, 50 Pac. 1068, 53 Pac. 1085; Chapman v. Soberlein, 152 Cal. 216, 92 Pac. 1S8, 190. 15. A publication for fourteen consecutive days constitutes a publication of "at least two weeks," where the requisite period of two weeks had fully elapsed prior to the date noticed in the publication for the meeting: Derby v. Modesto, 104 Cal. 515, 38 Pac. 900. See State v. Yellow Jacket etc. M. Co., 5 Nev. 415.
16. Purpose of affidavit for service by publication. An affidavit for service by publication is not designed to convey any information to the defendant to be served. Its purpose is to bring upon the record the statutory foundation for the publication of a notice. When the affidavit discloses that the action is one to foreclose a real estate mortgage and to sell land under such mortgage, a sufficient basis for publication is established: Sharp v. McColm, 79 Kan. 772, 101 Pac. 659, 660, citing Gillespie v. Thomas, 23 Kan. 138, and Kan. Code Civ. Proc., §§ 72, 74, (Gen. Stats. 1901, $$ 4506, 4508).
17. Defective service walved by answering over.-If the defendant desires to stand upon insufficient service of a writ or summons, its remedy is to move specially to quash the same, and. if the motion be overruled, then to withdraw from further appearance; the defective
service is waived by a general answer to the jurisdiction over the defendant: Eddy v. Lafayette, 49 Fed. 809, 1 C. C. A. 441; Ogdensburgh R. Co. v. Vermont R. Co., 63 N. Y. 176; Handy v. Insurance Co., 37 Ohio St. 370, 371; Gilbert v. Hall, 115 Ind. 549, 18 N. E. 28; Kronski v. Railroad Co., 77 Mo. 362; Thomasson v. Mercantile etc. Ins. Co., 217 Mo. 485, 116 S. W. 1092, 1095.
18. Time to answer pending motion to quash service.-Time to answer is not extended by and during the pendency of a motion to quash service of summons: Garvie v. Greene, 9 S. Dak. 608, 70 N. W. 847.
19. The word "process" signifies a writ or summons issued in the course of judicial proceedings. Under this signification a notice of appeal has been held to be not process: Gooler v. Eid
ness (N. Dak.), 121 N. W. 83, 85, citing and construing N. Dak Rev. Codes 1905, § 6738.
20. Process under Kansas statute.Under the Kansas statute, it is provided that the style of process shall be: "The state of Kansas"; that the same shall be under the seal of the court from whence it issues; that it shall be signed by the clerk and dated the day it is issued. It is held, however, that a notice employed by the attorney in obtaining service by publication is not a process within the meaning of the constitution or statute, and need not bear the style of "state of Kansas," nor the seal of the court in which the action is pending, nor be signed or issued by the clerk of such court: McKenna V. Cooper, 79 Kan. 847, 101 Pac. 662, 663.
Change of Place of Trial or Venue, Generally.-Removal of Causes to Federal
§ 473. Procedure for change of venue in state courts.....
Form No. 1095. Notice of motion for change of place of trial..
Form No. 1099. Affidavit of merits
Form No. 1100. Affidavit of residence and of merits for
§ 474. Removal of cause from state to federal court...
Form No. 1102. Petition for removal of cause from state to
Form No. 1105. Order of removal made by state court.......
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§ 473. PROCEDURE FOR CHANGE OF VENUE IN STATE COURTS. FORM No. 1095-Notice of motion for change of place of trial.
(In Younger v. Spreckels, 12 Cal. App. 175; 106 Pac. 895.) [Title of court and cause.]
To Jeannie H. Younger, as executrix of the last will and testament of Charles B. Younger, deceased, plaintiff in the above-entitled action, and to Charles B. Younger, Esq., attorney for plaintiff :
You will please take notice, that the defendant, Claus Spreckels, will move the above-entitled court at the courtroom thereof in the county courthouse of the county of Santa Cruz, state of California, on the 15th day of June, 1908, at the hour of ten o'clock A. M. of said day, or as soon thereafter as counsel can be heard, for an order changing the place of trial of the above-entitled action to the city and county of San Francisco, state of California, to be tried in the superior court of the state of California in and for said city and county.
Said motion will be made upon affidavits, which are herewith. served upon you, and upon the demand for change of place of trial served herewith, and upon the papers and files in the cause, and this notice, upon the following grounds:
That the defendant is a non-resident of the county of Santa Cruz, state of California, and that the defendant has demanded that the place of trial of said action be changed to the city and county of San Francisco, state of California, the place of residence of said defendant.
Dated June 4, 1906.
[Endorsed:] Filed June 5, 1908.
[Acknowledgment of service of the foregoing notice, and filing endorsement.] Receipt of a copy of the within notice this 5th day of June, 1908, is hereby admitted.
Charles S. Wheeler, Attorney for defendant.
Charles B. Younger,
H. H. Miller, Clerk.
FORM No. 1096-Motion for change of place of trial.
(In Younger v. Spreckels, 12 Cal. App. 175; 106 Pac. 895.) Now comes the defendant in the above-entitled action, and moves the court that an order be made changing the place of trial of the above-entitled action from the county of Santa Cruz, state of California, to the city and county of San Francisco, state of California, for the following reasons, and upon the following grounds, to wit:
That defendant, Claus Spreckels, does not reside in the county of Santa Cruz, state of California, and at the time of the commencement of this action was, and ever since has been, and now is, a resi dent of the city and county of San Francisco, state of California;
That said defendant has filed herein with this motion an affidavit of merits, and has demanded that this action be transferred for trial to the city and county of San Francisco, state of California, and also has filed herein an affidavit showing the residence of said defendant as above set forth, and has served upon the opposing counsel notice. of this motion, which said notice sets forth that this motion will be called for hearing on the 15th day of June, 1908, at the hour of ten o'clock A. M. of said day.
Dated June 4, 1908.
Charles S. Wheeler, Attorney for defendant.
[Acknowledgment of service by attorney for plaintiff and endorsement of filing.]
FORM No. 1097-Demand for change of place of trial.
(In Younger v. Spreckels, 12 Cal. App. 175; 106 Pac. 895.) [Title of court and cause.]
To the superior court of the state of California, in and for the county of Santa Cruz, and to Charles B. Younger, attorney for plaintiff :
I hereby demand that the place of trial of this case be changed to the proper county, viz. the city and county of San Francisco, state of California.
Dated June 1, 1908.
Residing at the city and county of San Francisco, state of California. Charles S. Wheeler, Attorney for defendant. [Acknowledgment of service by attorney for the plaintiff and endorsement of filing.]