On July 2, 1945, complaint was filed in the District Court of Lewis and Clark County in cause of action numbered 19801, entitled O.L. Brackman, plaintiff v. Albert H. Kruse, Commissioner of Agriculture of the State of Montana, and Thomas E. McMasters, Dairy Commissioner, defendants, and on Sept. 27, 1945, the defendants filed their answer to such complaint. Thus did the District Court acquire jurisdiction of the persons of the parties plaintiff and defendant.
On January 28, 1946, the relators in the instant proceeding filed in the District Court a petition for leave to file a complaint in intervention in said cause No. 19801 and on the same day the District Court, on such ex parte application, issued an order permitting the relators, each and all, to become parties *Page 430 to said district court action under the general designation "Intervenors" and to file forthwith their complaint in intervention and answer to the complaint of plaintiff in union with defendants. Thereupon a complaint in intervention and answer was filed by intervenors and thus did the District Court acquire jurisdiction of the persons of the intervening relators.
On January 29, 1946, the plaintiff O.L. Brackman filed in the District Court a written motion to strike from the files the complaint and answer of the intervenors which had been filed on the preceding day. The motion was made upon the grounds (1) that the complaint in intervention fails to set forth sufficient facts to allege an interest of intervenors in the matter in litigation, in the success of either plaintiff or defendants or in an interest against both as required by section 9088, Revised Codes, (2) that the interests of the intervenors, if any, are already represented, (3) that the intervenors are not entitled to intervene in said action, and (4) that the answer of intervenors is improperly made a part of their complaint in intervention.
On the same date, to-wit: January 29, 1946, the plaintiff filed a demurrer to the complaint in intervention on the sole grounds that it "does not state facts sufficient to constitute a cause of action." By the filing of the motion to strike from the files and the demurrer, the plaintiff, in effect, concedes jurisdiction of the District Court over the persons of the intervenors.
While it is quite true that parties seeking to challenge the jurisdiction of the court over their persons waive the right so to do when they contend that through some defect in the process of the court or its service the court is without jurisdiction unless such jurisdictional question is raised at the earliest opportunity (State ex rel. Bingham v. District Court, 80 Mont. 97,257 P. 1014; In re Graye, 36 Mont. 394, 93 P. 266), yet "As to other questions of jurisdiction, * * * they are never waived, for consent will not give jurisdiction of subject-matter." Reed v. Woodmen of the World, 94 Mont. 374, 382,22 P.2d 819, 821.
In the instant case it is quite clear that the District Court had jurisdiction over the persons of the plaintiff, the defendants *Page 431 and the intervenors at the time plaintiff's general demurrer and motion to strike the intervenor's pleading from the files were interposed, and it is equally clear that the court's jurisdiction over the persons of the parties is not challenged by either the motion or the demurrer, each of which, conceding that the facts are as alleged in the complaint in intervention, nevertheless urge that under the statute such allegations fail to show a right in the relators to intervene in the action, which is to say that the allegations of the complaint in intervention are insufficient to state a case entitling relators to intervene.
The majority opinion fails to observe the distinction between the waiver of the right to challenge the jurisdiction of the court over the person of a party not properly brought within the jurisdiction of the court and the right to challenge the jurisdiction of the court over the subject matter of the action. State ex rel. Bingham v. District Court, supra, is wholly inapplicable to the facts of the instant case and I find nothing therein which says that in a case where the court's jurisdiction of the persons of the parties is conceded that a party may not challenge the sufficiency of a pleading either by general demurrer or by a motion to strike from the files or that when a pleading is wholly insufficient it may not be stricken from the files even though its sufficiency has also been attacked by a general demurrer.
Rehearing denied April 22, 1946.