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State v. Sisemore

November 16, 1972

STATE EX REL DIAL PRESS, INC., PETITIONER,
v.
SISEMORE, RESPONDENT



Original proceeding in mandamus.

William G. Purdy, Medford, argued the cause for petitioner. With him on the briefs were Frohnmayer & Deatherage, Medford.

Donald R. Crane, Klamath Falls, argued the cause and filed a brief for respondent.

In Banc. O'Connell, C.J.

O'connell

This is an original proceeding in this court in mandamus to require defendant, the circuit judge for Klamath county to quash the service of summons and complaint upon petitioner.

An action was brought in the trial court against relator, a New York corporation, as defendant to recover damages alleged to have resulted from the publication of a book by relator. A copy of the summons and complaint was served on the Corporation Commissioner. On motion of the plaintiff in that action, an order of default was entered. Thereafter, relator filed the following motion:

"MOTION TO QUASH SERVICE OF SUMMONS AND TO VACATE AND SET ASIDE ORDER OF DEFAULT

"Defendant Dial Press, Inc., appearing specially and for the purpose of this Motion only, and without submitting itself generally to the jurisdiction of this Court, and for no other purpose, moves the Court for an order quashing the alleged service of summons upon this defendant and for an order vacating and setting aside the Order of Default heretofore entered herein for the reason and upon the ground that this defendant was never served with a copy of the summons or complaint, no copy of the summons or complaint was mailed or sent to it and that this Court never secured jurisdiction over this defendant."

The foregoing motion was denied on the ground that in filing the motion relator had made a general appearance and thereby conferred on the court jurisdiction

over relator. In so ruling the trial judge stated in the order denying the motion that "The situation is similar to that in Ahlstrom v. Lyon et al, 169 Or 629, [131 P2d 219] wherein the Court said that the defaulted party made a general appearance by requesting the affirmative relief of vacating the Order of Default and that such general appearance conferred jurisdiction over his person."

A motion to quash coupled with a motion to vacate a judgment on the ground that the court had no jurisdiction, without more, does not constitute a general appearance.*fn1 If in addition to the request to vacate the judgment the defendant asks for other relief, the appearance is general. This was the situation in Ahlstrom v. Lyon et al, supra. In that case a proceeding was brought by a judgment debtor to set aside an execution sale. The purchaser at the sale was cited to appear and show cause why the sale should not be set aside. The purchaser not having made an appearance, an order of default was entered against him. Thereafter, the purchaser's attorney appeared before the court at Burns, Oregon, and stated orally "that he would like to have a few days in which to move to open up the default order and to appear and resist the motion to quash the sheriff's sale." The trial judge granted him a reasonable time for this purpose. Later the purchaser ...


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