"The mere use of the term "special" does not necessarily cause an
appearance to be such. To constitute a special appearance only, it
must be special in name and in fact, and must not do other than to
ask the court to hold that it has no jurisdiction."
State Ex Rel. Livington v. Superior Court, 175 Wash. 405, 408, 27
P.2d 729 (1933).
========
"[1] The question is not whether the original motion to quash the
writ of garnishment was well taken (it now seems to be conceded that
it was not), but whether that motion was a general appearance in the
action. If so, the later motion for a change of venue, though
otherwise in due form and showing the necessary facts, was properly
denied because not made at the time of the first appearance in the
cause and therefore waived. On the other hand, if the motion to
quash the writ of garnishment was a special appearance only, then
the motion for the change of venue was made at the time of the first
appearance in the action, and should have been granted.
[2] The only question now presented is as to the character of the
appearance by motion to quash the writ. Was it a special or a
general appearance? Our statute on appearances, Rem. Rev. Stat., SS
241, reads:
{175 Wash. 405, 408}
"A defendant appears in an action when he answers, demurs, makes any
application for an order therein, or gives the plaintiff written
notice of his appearance. After appearance a defendant is entitled
to notice of all subsequent proceedings; but when a defendant has
not appeared, service of notice or papers in the ordinary
proceedings in an action need not be made upon him. Every such
appearance made in an action shall be deemed a general appearance,
unless the defendant in making the same states that the same is a
special appearance."
The mere use of the term "special" does not necessarily cause an
appearance to be such. To constitute a special appearance only, it
must be special in name and in fact, and must not do other than to
ask the court to hold that it has no jurisdiction.
The language of the motion here goes no further than the language of
the motion considered in Matson v. Kennecott Mines Co., 103 Wash.
499, 175 Pac. 181. Here the court was asked to "vacate, set aside
and quash." There the language was in the same identical words, and
we there said:
"Clearly there was here no invoking of the jurisdiction of the court
by asking for the rendition of a judgment or order in the case such
as the court can only render when it has jurisdiction of the persons
of the parties to the action. Under our statute, Rem. Code, SS 241,
and under all the authorities, this constitutes a special appearance
only."
See, also, Rauch v. Zander, 134 Wash. 40, 234 Pac. 1039.
[3] But it seems to be urged that, because the motion was directed
to a writ of garnishment rather than to a summons, therefore the
object and purpose was to secure the release of the fund garnisheed,
and for that reason the motion went beyond a mere challenge to the
jurisdiction.
{175 Wash. 405, 409}
The release of the fund which would inevitably follow the quashing
of the writ would be a mere incident. No writ could be quashed
without releasing the property which was thereby impounded. To
follow respondent's reasoning in this respect, would be to hold that
one could never challenge the jurisdiction to issue a writ of
attachment or garnishment without thereby appearing generally in the
cause.
There seem to be cases so holding, but the majority rule, and we
think the better and general rule, is to the contrary. The majority
rule is well stated by the United States supreme court in Davis v.
Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 217 U. S. 157,
as follows:
"In other words, it is contended that the person over whom personal
jurisdiction has not been obtained cannot appear specially to set
aside the attachment of his property, which we must assume in order
to completely exhibit the contention, is valid. We cannot concur in
the contention. It is supported, it is true, by some cases, but it
is opposed by more. Drake on Attachments, SS 112, and cases cited.
The stronger reasoning we think too is against the contention. A
court without personal service can acquire no jurisdiction over the
person, and when it attempts to assert jurisdiction over property it
should be open to the defendant to specially appear to contest its
control over such property; in other words to contest the ground of
its jurisdiction. The jurisdiction of the court, therefore, depended
upon the attachment, and the appearance to set that aside was an
appearance to object to the jurisdiction. In other words, the
defendant was only in court through its property, and it appeared
specially to show that it was improperly in court."
A multitude of authorities support this rule. We cite but a few of
the many, and have selected those mainly because of their full and
enlightening discussion of the question. 2 R. C. L. 332, SS 12;
Adams v. {175 Wash. 405, 410} Trepanier Lumber Co., 117 Ohio 298,
158 N. E. 541, 55 A. L. R. 1118, and an exhaustive note following;
Coffman v. Brandhoeffer, 33 Neb. 279, 50 N. W. 6; Belknap v.
Charlton, 25 Ore. 41, 34 Pac. 758; Price v. Hanson, 60 Utah 29, 206
Pac. 272; Tabor v. Baer, 107 W. Va. 594, 149 S. E. 675.
State Ex Rel. Livington v. Superior Court, 175 Wash. 405, 407-410,
27 P.2d 729 (1933).
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Source: Municipal Research & Services Center of Washington;
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http://www.mrsc.org/ >