
    (November 17, 1893.)
    CHASE v. HAGOOD.
    [34 Pac. 811]
    (Practice — Appeal from Justice’s and Probate Courts — Waiver of. Objection — Trial de Novo. — While it appears to be the accepted rule that a party who has objected to the sufficiency of process, by .answering over, waives such objection, this rule does not apply to appeals from justice’s or probate courts to district court under our statutes, which on such appeals give either party the benefit of all legal objections and'exceptions in the court below, and the trial in the district court is de novo.
    
    (Syllabus by the court.)
    
      APPEAL from District Court, Idaho County.
    H. L. Erost, for Appellant.
    By filing a demurrer, then answering and thereafter participating in the trial in the probate court, defendant, the respondent herein, made a general appearance in the action. (Bev. Stats., sec. 4892; 1 Am. & Eng. Ency. of Law, ft. p. 182, and •authorities cited.) To have availed himself of any error the court may have made in sustaining the summons and its service, respondent should have stood on his special appearance and refused to appear further; otherwise the error, if any, will be considered merely technical and disregarded. (Idaho Bev. Stats., sec. 4231; Desmond v. Superior Court, 59 Cal. 274; Sweeney v. Schultes, 19 Nev. 53, 6 Pac. 44; Lake v. Lake, 16 Nev. 366; Sears v. Starbird, 78 Cal. 231, 20 Pac. 547; Walker v. Turner, 27 Neb. 103, 42 N. W. 918; Shinn v. Cummins, 65 Cal. 97, 3 Pac. 133; Union Pac. B. B. Co. v. De Busk, 12 Colo. 294, 13 Am. St. Bep. 221, 20 Pac. 752; Buby Chief Min. Co. v. Gurley, 17 Colo. 199, 29 Pae. 669; St. Louis B. B. Co. v. Whitley, 77 Tex. 126, 13 S' W. 853.)
    J. E. Ailshie, for Eespondent.’
    Bevised Statutes of Idaho, at section 4841, in prescribing the manner of prosecuting appeals from justices5 and probate ■courts, says: “In the district court either party may have the benefit of all legal objections made in probate or justices5 courts. And the district court has the same power to grant relief by amendment and otherwise, as in actions commenced in the district court.55 Eew states have a statute the phraseology •of which is parallel with this, and it seems that the language •of this statute and the spirit of modern courts in the administration of justice will go in support of our grounds on this proposition. We maintain that sec. 4892 of the Bevised Statutes, cited by appellant, does not apply to the case at bar. If we had not made a special appearance and interposed this legal •objection, but gone ahead and demurred or answered, or both, then we admit we would have forever waived whatever defect that might have been, and the section cited would apply. When we interposed the motion, if it be one recognized by the courts, then it was entitled to a hearing in the district court on appeal, where the case comes on de novo. The special appearance for the purpose of the motion only could not operate as a general appearance. (Sho.w v. Rowland, 33 Nan. 154, 4 Pac. 146; Ferguson v. Rose, 5 Ark. 517; 1 Am. & Eng. Eney. of Law, 183,. 184, foot notes and eases cited; Lyman v. Milton, 44 Cal. 630,. and reaffirmed in Kinkade v. Myers, 17 Or. 470, 31 Pac. 557.) It seems to us that the better and sounder rule of law is that after a special appearance and motion to quash has been made- and overruled by the court, a general appearance then will not waive the right nor cure the defect. (DeidsMemer v. Brown^ 8 Cal. 340; Paul v. Armstrong, 1 Nev. 98; Gray v. Hawes, 8-Cal. 569; Atchison etc. R. Co. v. Nicholls, 8 Colo. 188, 6 Pac. 513; Linden Gravel Min. Go. v. Sheplar, 53 Cal. 345; Lander v. Flemming, 47 Cal. 614; Behlow v. Short, 91 Cal. 141, 37 Pac. 546; Kent v. West, 50 Cal. 185; Harkness v. Hyde, 98 U_ S. 476; McDonald v. McLaury, 63 Hun, 636, 17 N. Y. Supp_ 574.)
   HUSTON, C. J.

Plaintiff brought action in probate court, to recover $300 damages alleged to have been sustained by him through the wrongful acts of defendant, in breaking into inclosure of plaintiff, destroying a certain pigpen, and' driving-away certain hogs from the premises and possession of plaintiff.. The action ivas commenced by filing complaint, and issuing summons thereon. Summons was dated May 10th, returned May 15th and served May 11th. The summons contained the-following words: “The said action is brought to recover a judgment for the sum of $300 damages done to the plaintiff, together with the costs of this suit, against you, as more fully-appears in plaintiff’s complaint, now on file in my office at ML Idaho, in the county of Idaho and state of Idaho,” which is the-only statement of the case which appears in the summons. Ne copy of the complaint was served with the summons. On the-return-day of the summons, defendant appeared specially, and moved to quash the summons upon the grounds (1) that the defendant had never been served with a copy of the complaint in the action; (3)that the summons does not give the defendant sufficient notice, as required by law. This motion was overruled by the court. The defendant then demurred to the plaintiff’s complaint generally, and upon the ground of ambiguity and uncertainty, which demurrer was overruled; and the defendant then filed his answer, denying generally and specially all the allegations of the complaint. The case was then heard by the court without a jury. At the close of. the proofs on the part of the plaintiff, as appears by the record, “defendant, by his attorney, demurred, and set up as a cause of demurrer that the court has no jurisdiction over the subject matter. Demurrer sustained,' and cause dismissed without prejudice to plaintiff’s legal and lawful rights.” From this judgment, plaintiff appealed to the district court for said Idaho county. In the district court the defendant appeared specially, and moved to quash the summons on the ground that the copy of summons served on defendant does not give him sufficient notice, in that it does not contain a sufficient statement of the cause of action, in general terms, to apprise defendant of the nature of the claim against him; that defendant was not served with a copy ■of the complaint in said action. The district court sustained the motion, and dismissed the action at cost of plaintiff. From this judgment of dismissal, plaintiff appeals to this court. The appeal of plaintiff from the judgment of the probate court was, •as appears by the notice of appeal, taken on both law and facts.

The sole contention of appellant in this court is that, by answering and demurring in the probate court, defendant waived all objections to the original process, and cannot raise such objection either in the district court or here. It seems to be conceded, as is undoubtedly the fact, that the summons in this case was fatally defective, in not containing “a sufficient statement of the cause of action, in general terms, to apprise the defendant of the nature of the claim against him,” as provided in subdivision 2, section 4655 of the Eevised Statutes of Idaho. Had the district court overruled the defendant’s motion to quash the summons, and had the plaintiff then elected to demur or answer, or both, the rule in the California cases cited by appellant might properly be invoked; but the Eevised Statutes of Idaho (section 4841) provide that, on appeal to the district court, from a probate or justice’s court, either party may have the benefit of all legal objections made in the probate or justiee’s court. In this case the defendant’s motion to qnash the summons, made in the probate court, seems to have been, finally, virtually sustained by that court, although not until after the-defendant had both demurred and answered, and the plaintiff had put in his proofs; and the plaintiff appeals to the district, court, where the action was tried de novo. (Idaho Eev. Stats.,, sec. 4840.) On the calling of the case for trial in the district court, as appears from the record, defendant appeared specially,, and moved to quash the summons upon the grounds stated in his motiou, which were, in substance, the same as those npon which his like motion in the probate court was made, and the-district court sustained his motion, and dismissed the action, and it is from this judgment of dismissal by the district court: that this appeal is taken. The plaintiff never answered or demurred in the district court, and herein lies the distinction between the case under consideration and those cited by appellant. It would seem to be pretty well settled that where a party, after-having appeared specially for the purpose of objecting to process, and having such objection overruled, then answers to the merits, he waives all objection to process. But this case comes to this court as an original case in the district court, and that court sustained the motion to quash the summons. As the statute provides that where appeal .is taken from probate or justice’s court to the district court on both law and fact there shall be a trial de novo in the latter court, and either party shall be-entitled to any and all objections and exceptions taken in the-lower court, we cannot consider anything anterior to the proceedings in the district court. The judgment of the district, court is affirmed, with costs to the respondent.

Morgan and Sullivan, JJ., concur.  