Summary
holding defendant waived jurisdictional claim by including plea of statute of limitations
Summary of this case from Mahindra & Mahindra, Ltd. v. Holloway Motor Cars of Manchester, LLCOpinion
No. 5566.
Argued October 3, 1967.
Decided November 30, 1967.
1. An objection to service or notice is waived when the objecting party submits to the court any question other than the sufficiency of the service or notice.
2. A foreign defendant corporation by the filing of a plea of the statute of limitations was held to have invoked the jurisdiction of the court and as a matter of law waived its claim of lack of jurisdiction.
3. A defendant attacking the jurisdiction of the court is entitled to have the jurisdictional question determined before participating in other phases of the case; and where the defendant desires to file an additional special plea in the matter an extension of the twenty-day period for such filing "for good cause shown" should be sought under Superior Court Rule 22 (RSA 491 App.).
Action in case for personal injuries alleged to have been sustained by the plaintiff as a result of an accident which occurred on June 8, 1959, in Manchester, New Hampshire. Plaintiff claims that defendant manufactured and designed a trailer hitch draw head in a negligent manner which caused a trailer to separate from its towing vehicle and veer across the highway and collide with the vehicle which plaintiff was operating.
The defendant is a nonresident corporation with offices in Tacoma, Washington.
Plaintiff's writ, dated May 27, 1965, returnable August 3, 1965, was served on the Secretary of State on June 1, 1965, who thereafter sent the writ to the defendant in Tacoma, Washington. Defendant entered a special appearance on August 3, 1965, and filed a motion to dismiss on the basis that the court had no jurisdiction because the defendant was not and had not been doing business in this state. Also included in this motion was a plea of the statute of limitations.
The Trial Court (Loughlin, J.), denied the motion to dismiss on the ground that the defendant by pleading the statute of limitations had waived its objection to the jurisdiction and transferred defendant's exception.
Devine, Millimet, McDonough, Stahl Branch and E. Donald Dufresne (Mr. Dufresne orally), for the plaintiff.
Booth, Wadleigh, Langdell, Starr Peters and Alan Hall (Mr. Hall orally), for the defendant.
It has long been established in this state that "An objection to service or notice is waived when a party . . . submits any other question, except the sufficiency of the service or notice, to the court . . . ." Roberts v. Stark, 47 N.H. 223, 225; Dolber v. Young, 81 N.H. 157; Lyford v. Academy, 97 N.H. 167. The Trial Court in the case before us has correctly ruled that the defendant has waived its claim of lack of jurisdiction by including a plea of the statute of limitations.
The defendant contends that the plea of the statute of limitations does not go to the merits but is an additional ground why the court does not have the "power to hear the case on the merits." A successful plea of the statute would result in a judgment in favor of the defendant and would bar the plaintiff's right to recover in this action. By including such a plea, the defendant submitted a question to the court other than the sufficiency of the service. See Rosenblum v. Company, 99 N.H. 267, 270. It was a question upon which the Court could not act unless it had jurisdiction. By filing such a plea the defendant invoked the jurisdiction of the court and has as a matter of law waived its claim of lack of jurisdiction.
The defendant also argues it was required to file its plea of the statute of limitations within twenty days following the return day of the writ under Superior Court Rule 22 (RSA 491 App. R. 22) and that therefore it should not be held to have waived the question of jurisdiction by following the requirement of the rule. Rule 22, however, provides for the filing of a special plea after the expiration of twenty days "for good cause shown" and it is common practice for parties to file motions prior to the expiration of the twenty days requesting an extension of time until after jurisdictional questions have been determined. The defendant had the right to have the jurisdictional question decided before "participating in other phases of the case." Beggs v. Reading Company, 103 N.H. 156, 158; Maryland Casualty Co. v. Martin, 88 N.H. 346.
Defendant requests that if we rule as we have on the question of waiver we hold that its waiver resulting from its pleading filed after the expiration of the six-year period of limitation imposed by RSA 508:4 did not relate back to the date of the plaintiff's writ which was within the six-year period and thereby foreclose the defense of the statute of limitations.
If the defendant was absent from the state and if its contention that it was not doing business in this state is correct, no valid service could have been made on it prior to the enactment of RSA 300:14 and 15. This time that it was absent from the state would, therefore, be excluded in computing the time limit for bringing the action provided by RSA 508:9, (see Bolduc v. Richards, 101 N.H. 303) and defendant's waiver of the jurisdictional question and resulting general appearance would come well within the statutory period. If the defendant was doing business in the state, then, of course, the service made upon the Secretary of State within six years from the accident was valid under RSA 300:11 (c) and 300:12. Under these circumstances, it is not material whether defendant's waiver relates back to the date of plaintiff's writ.
Exceptions overruled.
All concurred.