Kingsley v. Great Northern Railway Co.

Finney, J.

1. The order of the circuit court imposed $10’ costs on the defendant in favor of the plaintiff, and this sum might be collected by proper process. Such an order is so far in the nature of a judgment that we have hitherto held orders erroneously made, imposing costs, appealable, which, without such imposition of costs, would not have been subject to appeal. Cleveland v. Burnham,, 60 Wis. 19, 20; Pride v. Weyenberg, 83 Wis. 59, 63; Sutton v. Wegner, 72 Wis. 294. As the appeal was taken before ch. 215, Laws of 1895, took effect, prohibiting appeals when the amount adjudged is less than $100, unless the certificate therein speci *384 fied. is made by the trial judge, the objection that the order in question was not appealable is not well taken.

2. The circuit court evidently held that the defendant’s notice of motion to dismiss the action, with costs, was a general appearance, notwithstanding the appearance was special, and for the purposes of the motion to dismiss for want of jurisdiction over the defendant, and founded on affidavits which showed that the defendant sought no other relief, and dismissed the motion accordingly, although the defendant was in court throughout only for the purpose of contesting its jurisdiction.

In the case of Allen v. Lee, 6 Wis. 478, where the defendant moved to dismiss an attachment for the reason that the court had not acquired jurisdiction of the defendant by service of process or otherwise, but it was not stated that the appearance was special, and it was therefore claimed that this amounted to a general appearance and waived the very defect to which the defendant was objecting, the court held that there was no waiver, it appearing “ that the defendant did not appear for any other purpose than to make the motion to dismiss.” The- question, What would amount to a waiver in such a case ? was fully considered in Blackburn v. Sweet, 38 Wis. 578, and Cole, J., stated that “ the principle to be extracted from the decisions is that a motion to set .aside a judgment which is founded partly on the failure of the court to obtain jurisdiction of the moving defendant, and partly upon grounds of mere irregularity in the rendition •of the judgment, consistent with the fact of jurisdiction and which imply its existence, amounts to a general appearance; that is, where the moving party asks some relief which can only be granted upon the hypothesis that the court has jurisdiction of the cause and person, this is a submission to the jurisdiction and waives all defects in the service of process and in that case, although the defendant asked that the execution and levy made upon it be set aside on account. *385 of the want of jurisdiction of the court over the defendant to render the judgment, it was held that this “ was entirely compatible with the claim that there was no judgment upon, which the execution could issue, because the court had no jurisdiction to render it,” and therefore it was no waiver. In Sanderson v. O. C. R. & C. Co. 61 Wis. 609, 611, this rule was applied to a similar motion, where the defendant had. asked that the service be set aside and also " that further proceedings be restrained until the summons should be served, or for such other or further order as the court might deem* meet to protect the rights of the defendant.” Taylob, J.,‘ said: “"When the order to show cause is read in connection with the affidavits upon which it is founded, it will clearly appear that no relief could be granted thereon except the, setting aside of the service of the summons in the action, as • there is no ground laid in the .affidavits for any other relief;., certainly for no other relief except such as would be proper, to grant as a consequence of setting aside such service; ” and, as no relief was asked except" such as was consistent with the want of jurisdiction of the court over the person of the defendant, that the defendant had not waived the objection.

In the present case the defendant asked that the serv-. ice of the summons be set aside, and “the action be dis-„ missed, with costs,” and, in a subsequent part of the notice, ■such relief is asked, “ with the costs of motion.” The defendant did not ask for costs of the action, but, in effect, for proper and rightful costs in consequence. It is not denied but that the defendant might have costs of the motion upon' granting the relief prayed, and we think it would be going too far to construe the present notice as an application for relief which the court could grant only in case it had jurisdiction of the subject matter and of the defendant, and, therefore, by a refined and exceedingly technical construction, was a waiver of that want of jurisdiction upon which it was expressly and constantly insisting. The claim for *386 costs must be construed as a claim only for such costs as the court might properly grant on setting aside the service of the summons, and, therefore, was not a waiver of the objection or a general appearance. ■

3. It is clearly shown by the affidavits that Clarity, upon whom the summons was served as the agent of the defendant, was in no proper or legal sense such agent for any purpose, either general or special. He was the agent of the Eastern Railway Company of Minnesota, a corporation separate and distinct from the Great Northern Railway Company. The contention that he was a freight agent of the Great Northern' Railway "Line, a combination of several companies for securing and sharing freights, and that the defendant was one of such companies, if sustained by the-record, would not make him the agent of the Great Northern Railway Company separately, so that service of the summons in the action could be lawfully made on him; any more than the agent of a partnership, by reason of that relation, could be considered the agent of an individual member of the firm in respect to his separate affairs.

By the Court.— The order of the circuit court is reversed,, and the cause is remanded with directions to set aside the service of the summons and dismiss the action, with costs of the motion. ■