Holland-Washington Mortgage Co. v. County Court

BURNETT, J.

1. On the authority of Holmes v. Gole, 51 Or. 483 ( 94 Pac. 964 ), the only question for us to consider is the ruling- of the court quashing and dismissing the writ; and we cannot consider the merits of the objections to the transactions in the County Court.

Respecting the writ of review it is required that—

“The writ shall be served by delivering the original, according to the direction thereof, and may be served by any officer or person authorized to serve a summons ; and a certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding- sought to be reviewed, at least ten days before the return of the original writ”: L. O. L., § 609.

At the outset it is contended by the defendant Barton in argument upon his special appearance that the court had no right to extend the time beyond the original return day in which the return might be made and service of a copy of the writ be had upon him. The writ itself may be ordered by the Circuit Court or judge thereof (L. O. L., § 604); and it may be returnable either in term time or in vacation (L. O. L., § 608), in which latter case the matter is triable and judgment is given therein by the judge in like manner and with like effect as in term time. It thus appears that the judge has equal authority over the matter with the court itself. It is said in Section 958, L. O. L., that a “judge may exercise, out of court, all the powers expressly conferred upon a judge as contradistinguished from a court, and not otherwise,” and we find in Section 983, L. O. L.:

“When jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred *674 on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by the Code, any suitable process or mode of proceeding may be adopted which may appear most comformable to the spirit of this Code.”

• For the “spirit” of the matter, so-called, we refer to Section 103, L. O. L., which provides that:

“The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done after the time limited by this Code, or by an order enlarge such time. * * ”

2. Construing all these sections in pari materia, we are of the opinion that the order enlarging the time within which to make service of a copy of the writ upon the defendant Barton was a legitimate exercise of judicial authority.

As shown by the affidavit of Peter Wagener, the copy of the writ of review and a copy of the order extending the time within which the same might be served were in fact delivered to the defendant Barton in person and personally at St. Paul, Minnesota, on November 25,1918, which was more than ten days prior to the time as extended, within which to make return. It is true that we find in Section 527, L. O. L., this language:

“No natural person is subject to the jurisdiction of a court of this state, unless he appear in the court, or be found within the state, or be a resident thereof, or have property therein; and in the last case only to the extent of such property at the time the jurisdiction attached.”

It is likewise a rule of law that a special appearance is not within the meaning of the clause ‘ ‘ unless he appear in the court.” The object of the special appearance is to challenge the jurisdiction of the court in *675 limine'over the person who thus appears. The essence of the whole procedure in the County Court was to procure a road for the benefit of the real property of the defendant Barton situate in Hood River County. In limiting the jurisdiction of a court relating to property of a nonresident which is situated within this state “only to the extent of such property,” it was not the intention of the law utterly to exempt from judicial authority of the state all realty owned by nonresidents. Neither does it mean only that the land of nonresidents shall be sold for the satisfaction of their debts, although that is a most common exercise of the judicial function respecting such property.

3, 4. The landed estates of nonresidents are subject to the police power of the state both for favorable and unfavorable action. In the instant proceeding the property of the nonresident Barton, if he be such, was- subject to the jurisdiction of the court for the purpose of obtaining an advantage for his realty; and to that extent the property is within the authority of the judiciary. The nonresident cannot invoke the jurisdiction of the courts for the benefit of his realty and contend that the proceeding he invites cannot be reviewed. In the exercise of the police power the state has provided several means by which local realty of nonresidents can be affected. The power of taxation is the one most generally exercised, and that, too, without question. Again, we find that county roads may be laid out over the property of a nonresident, in which proceeding the only notice given is by posting up copies in three public places in the vicinity of the road and at the courthouse door. These are instances where the legislative authority has prescribed the means of giving notice of the proposed proceeding and affording to the land owner' an opportunity to be heard. *676 In the instant proceeding it is required that the copy of the writ shall be served upon him by personal delivery. In our judgment, it was competent for the legislature to provide this method of service, and it is available as a means of acquiring jurisdiction over the defendant Barton to the extent of his land in this state. At the time of the hearing of his motion by special appearance, therefore, the court had before it in the affidavit of Wagener proof that the copy of the writ had been served upon Barton by personal delivery. In the wisdom of the legislature this has been declared to be sufficient to obtain jurisdiction over bim to the extent of his property here. It disposes of the defects suggested by the first clause of his motion to the effect that no service had been made upon him. The Circuit Court should have disregarded that contention in the light of the situation presented on the record at the hearing* of the motion.

5. Neither the County Court as a judicial tribunal nor the individuals who as officers compose such a court are proper parties to the writ of review: Farrow v. Nevin, 44 Or. 496 ( 75 Pac. 711 ); nor is it requisite that the copy should be served upon either the county judge or the commissioners. Moreover, it is a general rule that all papers directly affecting a court are properly delivered to the clerk of the court. Consequently the second ground of the motion was not well taken.

6, 7: Giving attention to the third specification of the motion, it is not contemplated by the statute that the order for the issuance of the writ should prescribe the manner in which the same is to be served. That is established by law, and it is not requisite that the order of the court should recite the statute. Serving the writ “according to the direction thereof,” as indicated by Section 609, L. O. L., means to serve it *677 upon the parties to whom the process is directed. It is not required that the petition should he filed before the order is made, for the writ may be allowed by the court or judge thereof, and it is competent to apply directly to the judge for the writ and afterwards file with the clerk of the court the petition accompanied by the order for the writ.

8. Although not directly specified in the motion, it is argued under the general objection embodied in the fifth clause, that the petition does not state facts sufficient to show that the plaintiff is entitled to a writ, in that the county of Hood Biver is not made a party to the proceeding. It is true that in the title to the cause as it appears in the abstract, the county is not expressly named as a defendant; nor is it named as a defendant in the proceeding in the County Court to establish the road in question. The county is a defendant by operation of law, arising from the proceedings initiated by an individual to establish a road. Among others, one reason for holding the county to be a party is that it is responsible for any accident occurring upon such a road, happening to a traveler thereon who is himself without fault: Section 6375, L. O. L. The situation is analogous to that in which the statute makes the state a party defendant to every divorce case: Section 1020, L. O. L., as amended by Chapter 86, Laws 1911. Tet we never hear of the state’s being named in the title of any divorce case, or of any allegation in the body of the complaint in anywise relating to the state. It has never been the practice to name the county as a party in proceedings in the County Court relating to the laying out of a public road. The proceeding to review the action of the County Court in such matters does not involve any new or different parties. All that is required to obtain the writ is a *678 petition aptly describing the proceeding to be reviewed and a proper bond, together with a specification of the erroys assigned. The statement of the facts appearing in the description of the proceeding of the County Court as embodied in the petition for the writ gives rise to the legal conclusion that the county is a party to the proceeding in the Circuit Court. It is not necessary to support by averment what the law has already established.

9. The writ is directed to the court the decision of which is sought to be reviewed, or to the clerk or other officer having custody of its proceedings, and requires it or him to return said writ to the Circuit Court, within a time therein specified, with a certified copy of the record or proceedings: Section 607, L. O. L. The service of the writ is analogous to the service of a summons, and it is provided in Section 55, L. O. L., that if the action be against any county, the summons shall be delivered to the clerk of such county. Hence, in this case by analogy it is proper as a service upon the county to deliver the writ to the county clerk. As we have seen, the county clerk acknowledged service of the writ upon him at Hood River, in Hood River County, September 4, 1918, both in his capacity as clerk of the County Court, the tribunal of which the proceedings are sought to be reviewed, and as clerk of the defendant county.

In his brief in this court, however, the defendant Barton argues that the clerk had no authority in either capacity to admit service of the process so as to bind the county. In Wilson v. Martin-Wilson Automatic Fire Alarm Co., 149 Mass. 24 ( 20 N. E. 318 ), the defendant was a Maine corporation doing business in the State of Massachusetts. The statute of the latter state required such corporations, before doing business *679 within its confines, to appoint the commissioner of corporations its true and lawful attorney upon whom all lawful process in any action or proceeding against it might be served. In a suit in equity, as we read in the report of the case, ££ service was accepted for the defendant by its attorney £to the same extent that the plaintiff would have obtained service by leaving a copy of this writ with the commissioner of corporations, he having been duly authorized to receive service in accordance with the statute therein provided.’ ” The court held this to be a sufficient proof of service to enable the trial court to render a personal judgment against the defendant company.

10. In South Publishing Co. v. Fire Association of Philadelphia, 67 Hun, 41 ( 21 N. Y. Supp. 675 ), the defendant was a Pennsylvania fire insurance corporation. The laws of New York then in force were substantially like those of Massachusetts mentioned above, except that the superintendent of the insurance department was the officer upon whom process was required to be served. In that case the superintendent signed a written admission of service which he duly acknowledged and delivered to the plaintiff. The court upheld this service and proof thereof as giving jurisdiction over the cause. A like ruling was made in Farmer v. National Life Assn., 67 Hun, 119 ( 21 N. Y. Supp. 1056 ). In Atlantic & Gulf R. R. Co. v. Jacksonville etc. R. R. Co., 51 Ga. 458 , it was held that the agent of a foreign corporation may acknowledge service of a declaration in an attachment, so as to authorize a general judgment against his principal. Within the reasoning of these cases we conclude that it was competent for the county clerk, as the officer upon whom service of process against the county should be made, to admit in his official character that such service *680 had been made, and that this would be binding upon the county so as to give the court jurisdiction over it in the determination of the merits of the writ of review. He is the officer upon whom service must be made as against the county. No good reason exists why his official admission of the fact that the writ was served upon him should not have equal weight with the official statement of the sheriff that he had served the same. The petition for the writ gives a full description of the proceeding of the County Court of which review is desired and specifies the errors relied upon with convenient certainty, so that it is not amenable to the objection that it does not state facts sufficient to authorize the issuance of the writ.

We are of the opinion that when the motion of the defendant Barton was heard, the Circuit Court had before it sufficient data to establish its jurisdiction over the whole subject matter of the proceeding and of his person, at least to the extent of his real property here involved, and that it was erroneous to quash and dismiss the writ. The judgment of the Circuit Court is reversed, and the cause is remanded for further proceedings.

Reversed and Remanded. Rehearing Denied.

McBride, C. J., and Benson and Harris, JJ., concur.