Wm. Cameron Co. v. Cons. Sch. Dist. 1 , 44 Okla. 67 ( 1914 )

This action was commenced in the district court of Kiowa county, Okla., by Wm. Cameron Co., a corporation, against consolidated school district No. 1 of Kiowa county, Link Cowen and Jack Kahoe, copartners, doing business under the firm name of Cowen Kahoe, the Commerce Trust Company, a bonding corporation, of Kansas City, Mo., and C. T. Herring Lumber Company, a corporation, to recover of Link Cowen and Jack Kahoe, and Cowen Kahoe, copartners, who had constructed a school building for said school district, and said Commerce Trust Company, as sureties on the bond of said Link Cowen and Jack Kahoe, and Cowen Kahoe, the price of material furnished them and used in such building, amounting to $566.15, also to foreclose an alleged lien upon such building and, in this action, to deny and bar any claim of right any defendant might have affecting the same property. The C. T. Herring Lumber Company filed a similar petition against Link Cowen and Cowen Kahoe for $525.25 and to foreclose a similar lien upon the same property.

Neither Cowen, Kahoe nor the Commerce Trust Company resided or were found in Kiowa county. The plaintiff's right to sue in that county was wholly dependent upon the fact that said school district and C. T. Herring Lumber Company might be found and summoned therein.

The plaintiff and said C. T. Herring Lumber Company each recovered judgment for the amount of its claim against Link Cowen; but judgment was denied them against the Commerce Trust Company; and their demand for foreclosure of the lien claimed was also denied. Link Cowen moved to quash service of summons upon him upon the grounds that he was not found or summoned in said Kiowa county, nor a resident of the same, which motion was overruled and exception thereto was reserved; and thereupon he filed, first, a demurrer, which was overruled, and finally he filed a plea to the jurisdiction of the court over his person, a general denial, and a cross-petition against said school district for $4,452.50 as his answer.

The two original plaintiffs in error, in deference to decisions subsequent to the trial of this case, have in effect abandoned their contention that the property of defendant school district is subject to their claims of lien.

The only question requiring consideration and decision in this case is as to whether (assuming, but not deciding, that he was not rightfully sued, in the first instance, in Kiowa county) Link Cowen waived his objection to being so sued by his cross-petition against the school district.

In F. C. Austin Mfg. Co. v. Hunter, 16 Okla. 86, 86 P. 293, it is held that although one, having properly objected to the jurisdiction of the court over his person, which had been overruled, may thereafter answer and proceed to trial without being deemed to have entered a general appearance or to have waived his objection, but, if he asks for affirmative relief against the plaintiff, he thereby waives such objection and submits himself to the jurisdiction of the court for all purposes.

That defense does not constitute waiver, see Oklahoma FireIns. Co. v. Barber Asphalt Paving Co., 34 Okla. 149,125 P. 754; Spaulding et al. v. Polley, 28 Okla. 764, 115 P. 864;St. Louis S. F. R. Co. v. Clark, 17 Okla. 562, 87 P. 430;Chicago Bldg. Mfg. Co. v. Kirby, 10 Okla. 730, 63 P. 966;Chicago Bldg. Mfg. Co. v. Pewthers, 10 Okla. 724,63 P. 964.

That asking affirmative relief which is not defensive does constitute such waiver, see Pratt v. Pratt, 139 P. 261;Walton v. Kennamer et al., 39 Okla. 629, 136 P. 584; Haynesv. City Nat. Bank of Lawton, 30 Okla. 614, 121 P. 182.

We think the principle is the same whether he asks for affirmative relief against the plaintiff or against a codefendant, or does more than defend himself against the action brought against him.

For the reasons given, the judgment of the trial court should be affirmed.

By the Court: It is so ordered.