Sythe Court —
Berry, J.— We have no doubt that the District Court acquired jurisdiction of the plaintiff in error.
By see. 37, p. 629, Comp. Stat., it is enacted that no corporation “ is subject to the jurisdiction of a Court of this Territory unless it appear in Court,” &c.; and by sec. 26, p. 228, Id., “ a defendant appears in an action when he answers, demurs,” &c. By sec. 59, p. 539, Id., a voluntary appearance is made equivalent to personal service. In this case the defendant undertook to demur specially, that is, under such protestations as to prevent the demurrer from being taken against him as a general appearance. This he could not do, for the statute, as we have seen, defines the effect of a demurrer in plain language. But the plaintiff in error insists that it is absurd to hold that where a defendant demurs to the jurisdiction of the Court over his person, the very fact that he demurs and therefore appears, gives the jurisdiction which is brought in question. But it is well settled that this ground of demurrer only embraces cases where the Court cannot under any circumstances acquire the jurisdiction. For instance, if a foreign minister were sued in one of our District Courts, he might demur for want of jurisdiction of the person, if the fact that he was a foreign minister appeared upon the face of the complaint. And so far from being deprived of the benefit of his demurrer by his appearance, 'he would be entitled to an allowance of his demurrer and the Court would be ousted of jurisdiction. It is also to be observed that when the plaintiff in error insists that the complaint is demurrable because certain facts which he deems necessary to give jurisdiction are not alleged, his objection is hardly within the terms of the statute. For his objection is not that it appears upon the face of the complaint that the Court has no juris*186diction, &c., but that it does not appear that it has jurisdiction, &c., which is' ánother and a different thing, and does not furnish ground for demurrer. See Powers vs. Ames, 9 Minn., 178. So far as any objection to the service of the process is concerned, of course nothing could be alleged in reference to that in the complaint,.and a demurrer would not reach such objection.
Without dwelling further on these points, we have no doubt that in this case to demur was to appear, and to appear was to give jurisdiction. The views which we entertain are supported by 1 Monell's Pr., 540; 1 F. & S. N. Y. Pr., 368; Norris vs. Hope Mu. Ins. Co., 5 How. Pr., 96; 3 Code R., 161; 8 Barb. S. C., 541; Rider vs. Whitlock, 12 How. Pr., 209; Flynn vs. Hudson River R. R. Co., 6 Id., 439; 5 Id., 233.
The fourth cause of action set out in the complaint was for a tort, and it was improperly joined with the three preceding counts, which were upon contract. No objection was taken to the misjoinder, but it is urged that the clerk had no authority to enter judgment upon this count. This depends upon the construction of sec. 42, p. 562, Pub. Stat., and of sec: 173, p. 555, Id. And we think that these sections do not confer the authority exercised by the clerk in this case, and that - it was error for him to enter judgment upon the fourth count. It has, however, been held in several cases by this Court (Ch. Justice Emmett dissenting) that where errors have been committed by the clerk below in making up the damages for judgment, application for correction must first be made to the Court below, and that where this has not been done this Court will not review the errors complained of. Babcock et al. vs. Sanborn et al., 3 Minn., 141; Id., 67, 147. But the statute gives to every party the right to remove to this Court any final judgment of the District Court, to be “ examined and affirmed, reversed or modified,” and however convenient it might be in many respects if a party were compelled to apply to the Court below in the first instance, for the correction of any error committed by the clerk, it must be admitted that a judgment, though it be entered up by the clerk without the knowledge even of the judge, is in contemplation of law the judgment of the *187Court, and in a case like this a final judgment. Reluctant as we are to disturb a rule of practice established by repeated decisions of this Court, we are unable to reconcile the rule with the express provisions of law. Nor can we perceive how this Court can refuse to examine and correct the errors appearing by the return, without a plain violation of the duty imposed upon it by statute and a denial of justice. And we cannot see the authority by which a party is required to make application to the Court below in the first instance, so long as no such authority is to be found in the statute regulating the whole subject. Further discussion of this point is unnecessary, as we concur in .the main with the' views expressed by Ch. J. Emmett, dissenting, in Babcock et al. vs. Sanborn et al., 3 Minn., 145.
The judgment below is reversed, unless the defendant in error shall, within twenty days from the service of notice of this decision, remit therefrom the sum of five dollars claimed under the fourth count of the complaint and any interest which may have been computed thereon, in which case the judgment is afiirmed for the residue.