No. 90-333
4E4-
IN THE SUPREME COURT OF THE STATE OF MONFANA + .-*,.
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1990 V*
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CLERK OF ! - . . ,I
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SHIRLEY SPENCER, q i ~ -
Plaintiff and Appellant, SfATt*< ..
-vs-
B. J. UKRA, individually and B. J. UKRA AND ASSOCIATES,
BUSINESS MANAGEMENT AND TAX CONSULTANTS,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
George T. Radovich, Billings, Montana
For Respondent:
Scott G. Gratton, Anderson Brown Law Firm, Billings,
Montana
Submitted: October 19, 1990
~ecided: January 10, 1991
Filed: Y
9
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Clefk
Justice John C. Sheehy, delivered the Opinion of the Court.
plaintiff Shirley Spencer appeals from an order of the
Thirteenth ~udicialDistrict Court, Yellowstone County, dismissing
her complaint against defendants B. J. Ukra, individually, and B.
J. Ukra and Associates, and Business Management and Tax
Consultants, for lack of personal jurisdiction. We reverse.
The sole issue raised by the parties on appeal is whether the
District Court erred in granting Ukralsmotion to dismiss for lack
of personal jurisdiction. The District Court had concluded that
service of the Ukra defendants in California pursuant to Montana's
Long Arm Rule, 4B(1), M.R.Civ.P., was deficient because the
District Court found that the exercise of jurisdiction over the
Ukra defendants in the case at bar through service of summons under
the Long Arm Rule would not be reasonable.
We have no need to determine those grounds on appeal however,
because the District Court record shows that the Ukra defendants,
before they raised the question of personal jurisdiction, had made
a general appearance in the District Court action and subjected
themselves to the jurisdiction of the District Court.
The complaint and the summons issued out of the Yellowstone
County District Court in this case were served upon the defendants
in California on January 6, 1989.
On February 9, 1989, there having been no appearance made by
the Ukra defendants, on motion of counsel for the plaintiff, the
District Court clerk entered the default of the Ukra defendants.
On March 7, 1989, the Ukra defendants, through their counsel,
filed a written motion to set aside the default pursuant to Rules
55 (c) and 60 (b) M.R.Civ.P. The written motion recited that the
summons and complaint were served on January 6, 1989; that the Ukra
defendants retained Montana counsel on March 4, 1989; that
plaintiff's counsel had stipulated to setting aside the default and
that the defendants1 motion to set aside the default was made
solely upon the grounds that through inadvertence and excusable
neglect the defendants had failed to make an appearance within the
time allowed by law. The concluding paragraph of the written
motion stated:
Therefore, Defendants hereby request an order setting
aside the default issued by this Court and appear
herewith and ask leave of Court allowing Defendants (20)
days to file a response to the complaint. (Emphasis
added. )
On March 20, 1989, counsel for the Ukra defendants filed in
the District Court two stipulations between counsel. One
stipulation was to the effect that the default entered against the
defendants could be set aside and that the defendants have 20 days
thereafter within which to file "a response to the Complaint in
this action." The second stipulation provided that the Ukra
defendants would have to and including April 11, 1989, to answer
and respond to the plaintiff's combined discovery requests
propounded "upon1'them on January 6, 1989.
On March 22, 1989, the District Court entered its order
setting aside the default, based upon the motion of the Ukra
defendants, and pursuant to the stipulation between counsel and
granted the defendants 20 additional days within which to file "a
response to the complaint in this action.''
On April 10, 1989, the defendants filed a motion in the
District Court to dismiss the action for lack of personal
jurisdiction and failure to state a claim pursuant to Rule 12(b),
Thereafter, after a series of briefs, motions for discovery
and to compel discovery, and orders for the same, the District
Court, on June 8, 1990, dismissed plaintiff's action for lack of
jurisdiction over the defendants. It is from this order that
plaintiff appeals.
The first appearance of the Ukra defendants in this case was
a motion to set aside the judgment, based solely upon inadvertence
and excusable neglect. No issue was raised at that time or in that
motion of the lack of personal jurisdiction over the defendants.
Motions to vacate a judgment on the ground of mistake,
inadvertence, accident, surprise, or excusable neglect, and not on
jurisdictional grounds, have been held to constitute a general
appearance. 5 Am. Jur. 2d Appearance 5 32, at 505-06.
The general rule is stated thusly:
Personal jurisdiction may be acquired over a nonresident
by his voluntary general appearance. If he makes such
an appearance in person or by attorney, he submits
himself to the jurisdiction of the court and the court
may make a personal adjudication against him; he cannot,
if unsuccessful, avoid the effect of the judgment or
other decision by urging that he was a nonresident and
that the court pronouncing judgment against him had no
jurisdiction over him.
5 Am. Jur. 2d Appearance 5 11, at 488.
This rule of general appearance is also established in
Montana. In Haggerty v. Sherburne Mercantile Co. (1947) 120 Mont.
386, 395, 186 P.2d 884, 891, this Court said:
In Gravelin v. Porier, 77 Mont. 260, 274, 250 P. 823,
826 this Court said: "In fact, any act which recognizes
the case as in court constitutes a general appearance,
and even in the face of a declared contrary intention,
a general appearance 'may arise by implication from the
defendant seeking, taking, or agreeing to some step or
proceeding in the cause beneficial to himself and
detrimental to the plaintiff, other than one contesting
only the jurisdiction of the court. (Citing authority.)
The voluntary general appearance by the defendant is a waiver
of the issuance or service of the summons and consequently of any
defects or irregularities therein. Haqqerty, 186 P.2d at 890.
Haqserty was decided before the adoption by this Court of our
Rules of Civil Procedure modeled on the federal Rules. It is true
that ordinarily, a defendant pleading under Rule 12(b), M.R.Civ.P.,
may raise the issue of lack of jurisdiction over the person, by
motion, which shall be made before pleading further if a further
pleading is permitted, or the objection to personal jurisdiction
may be combined with other general defenses. However even under
our Rules of Civil Procedure, such objection to lack personal
jurisdiction must be made at the time of the initial appearance in
the District Court.
The point is illustrated in the Colorado case of Weaver
Construction Co. v. District Court for El Paso City, (Colo. 1976),
545 P.2d 1042. In that case, involving two defendants, one had
been served properly with summons and complaint, and the other had
not. They filed a joint motion to set aside a default judgment
under Colorado's Rule 60(b) on the grounds (1) that there was a
meritorious defense, and (2), that the judgment was void for lack
of proper service. The Court stated the effect of those grounds:
On or about October 15, 1975, defendants Robert and Joy
Grinnell, through counsel, filed several documents with
the District Court: an entry of special appearance, a
motion to quash service of process, and a statement of
meritorious defense. The filing of these documents was
an attempt to appear solely for the purpose of contesting
personal jurisdiction. Had the district court found that
personal jurisdiction existed, then in the alternative
the Grinnells would have entered a general appearance for
the purpose of setting aside the default judgment and
receiving a trial on the merits. Their statement of
meritorious defense specified several grounds of defense
to the merits of the allegations in the complaint.
A hearing on the motions was conducted on October 27,
1975. The trial judge set aside the default judgment as
to Robert Grinnell because of the lack of proper service
and process, and as to Joy Grinnell because of excusable
neglect, and the presence of the statement of
meritorious defense.
Weaver, 545 P.2d at 1044.
The Colorado Supreme Court held that as to the person not
served, the default judgment was vacated, but as to the other, the
one moving for excusable neglect, the default was merely vacated.
The Court explained as follows:
The general appearance subjected Robert Grinnell only to
the jurisdiction of the court from the date of the
appearance, and is not retroactive as to validate the
void judgment. (citing authority.) The subsequent
filing of an entry of special appearance as an
alternative pleading would have constituted a special
appearance, avoiding the continuing jurisdiction of the
court, had it been his initial appearance. However, once
a person subjects himself to the jurisdiction of the
court by entering a general appearance, he cannot
withdraw the earlier appearance and escape the
jurisdiction of the court. (Emphasis supplied.)
Weaver, 545 P.2d at 1046.
In the case at bar, the Ukra defendants, having moved the
court to set aside the default in their initial appearance, without
at the same time preserving the question of lack of personal
jurisdiction, consented to the general jurisdiction of the court
and their appearance was general. This conclusion is also
fortified by a written "Notice of Appearancev1 also filed by
defendants on March 7, 1989, in the District Court which stated as
follows:
PLEASE TAKE NOTICE that the firm of Anderson, Brown,
Gerbase, Cebull, Fulton, Harman, and Ross, P.C., by Scott
G. Gratton, appears herein for the defendants B. J. Ukra,
individually, and B. J. Ukra and Associates, Business
Management and Tax Consultants and requests that you make
service of all pleadings at the firm address.
The foregoing notice of appearance also, under our statutes,
is an appearance. The pertinent statute provides:
25-3-401. Notice ~esuirements After Appearance of
Defendant. A defendant appears in an action when he
answers, files a motion, or gives the plaintiff written
notice of his appearance or when an attorney qives notice
of appearance for him or has such appearance entered in
open court. After appearance, a defendant or his
attorney is entitled to notice of all subsequent
proceedings in which notice is required to be given.
(Emphasis supplied.)
The rule is that a party defendant may not first make the
general appearance or file a motion submitting to the general
jurisdiction of the court, which motion in effect recognizes the
validity of the action taken by the court against him, and then
later disputes the personal jurisdiction of the court over the
defendant. Collings v. Phillips (Wis. 1972), 194 N.W.2d 677.
Because the Ukra defendants made an initial appearance to vacate
the default without reserving the question of personal
jurisdiction, their appearance was general, and waived all
irregularities with respect to the service of process.
Accordingly, the decision of the District Court is reversed.
n
<)&@ Justice
We Concur:
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Chief Justice
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