WM. CAMERON & CO. et al. v. CONSOLIDATED SCHOOL DIST. NO. 1 OF KIOWA COUNTY et al.

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WM. CAMERON & CO. et al. v. CONSOLIDATED SCHOOL DIST. NO. 1 OF KIOWA COUNTY et al.
1914 OK 454
143 P. 182
44 Okla. 67
Case Number: 3539
Decided: 09/22/1914
Supreme Court of Oklahoma

WM. CAMERON & CO. et al.
v.
CONSOLIDATED SCHOOL DIST. NO. 1 OF KIOWA COUNTY et al.

Syllabus

¶0 APPEARANCE--Objection to Jurisdiction-- Waiver. A defendant, who has objected to the jurisdiction of the court over his person, may, after his objection has been overruled, in any manner defend against the action without waiving his objection; but if he does more and, aside from his defense, voluntarily demands affirmative relief in the same action, and thus invokes the jurisdiction of the court in a matter unnecessary to his defense, he will be deemed to have waived such objection.

O. B. Reigel, for plaintiff in error Wm. Cameron & Co. Hays & Hughes, for plaintiff in error
C. T. Herring Lumber Co. Blakeney, Maxey & Miley, and L. M. Keys, for cross-petitioner in error Link Cowen

THACKER, C.

¶1 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,

¶2 By the Court: It is so ordered.