Richardson & Boynton Co. v. Utah Stove & Hdw. Co. State of Illinois, can be construed to be a general appearance for the purpose of giving the court jurisdiction to proceed to try the case and render a judgment. Section 3334, Revised Statutes Utah 1898, provides as follows: "A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice. of his appearance, or when an attorney gives notice of appearance for him." Under the foregoing provisions of the statute, which are admitted to be the same as the provisions of the Illinois statute, the question as to whether the appearance of respondent in the Illinois court was a general or special appearance depends somewhat upon the character of the paper filed by it in the Illinois court. At common law, when a defendant was sued by a wrong name, if he desired to take advantage of the error, he could do so only by filing a plea in abatement. If he failed to so plead, he waived the irregularity, and could not raise the question of misnomer in his plea to the merits; the rule being to dispose of all dilatory pleas before pleading to the merits. 1 Chitty, Plead., 440, 441. While there is no such pleading designated by our Code as a "plea in abatement,” yet the several defenses that were permitted to be raised by this plea under the common-law practice still exist, and may be pleaded in the answer as new matter. Allison v. Railroad, 42 Iowa 274; Dutcher v. Dutcher, 39 Wis. 651; Plath v. Braunsdorff, 40 Wis. 107. Pomeroy, in his work on Code Remedies, section 698, says: "Defenses still exist of the same essential nature as those which were formerly set up by means of a plea in abatement, and a judgment thereon in favor of defendant does not forever bar the plaintiff from the further prosecution of his demand. They are governed, however, by the same rules of procedure that regulate all the other defenses which may be relied upon by a defendant. There is no difference in the methods of pleading them or trying them, or of adjudicating upon them. The only difference is in the respect to the conclusive effects of the judgments rendered upon them. Richardson & Boynton Co. v. Utah Stove & Hdw. Co. In other words, so far as concerns the manner of alleging and of trial, all distinctions between these two classes of defenses have been abolished, and both have been placed in the same category." Phillips on Code Pleading, at section 238, says: 'An answer in abate nomer. ment sets up some matter of fact, the legal effect of which is to overthrow the pending action, without questioning the merits of the plaintiff's demand. Among the defenses that may be pleaded in abatement are misAs at common law a plea in abatement was required to give the plaintiff a better writ of declaration, so under the new system such answer must furnish information-such as the true name of defendant, where misnomer is pleaded--that will enable the plaintiff to cure the defect by amendment, if it be a defect that can be so cured." Bliss on Code Pleading, section 345, says: "The Code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he elects to make must be embraced within it. Matter in abatement is as much a defense to the pending action as matter in bar." It will thus be observed that, whatever the pleading filed by the respondent in the Illinois court may be classed and denominated, it was in fact and in law an answer, and not a motion, as contended by respondent, and the filing of this answer constituted a general appearance. Counsel for respondent have devoted much space in their brief to the discussion of the question of jurisdiction; claiming that the "defendant was not doing business in the State of Illinois, and hence not amenable to the process of its courts unless it voluntarily appeared in the action." As above stated, the appearance of defendant was, under the statute, a general appearance, and the court acquired jurisdiction of its person. And further the respondent did not appear in the Illinois court for the purpose of raising the question of jurisdiction, nor did it at any time assail the juris Richardson & Boynton Co. v. Utah Stove & Hdw. Co. diction of that court until after the bringing of this action. It is admitted that, at the time the action in the Illinois court was commenced, P. W. Madsen, as president and business manager of respondent company, was in the city of Chicago, State of Illinois, on business for and on behalf of respondent, and while there, as shown by the record, he was served with the summons referred to in the foregoing statement of the case. The defendant, in answer to the summons, appeared in court and filed the plea hereinbefore referred to, and which, it will be observed, in no way raised or challenged the jurisdiction of the court, but merely asserted that respondent had been sued by the wrong name. The plaintiff admitted the error, and asked that the record be amended, and that the suit proceed against defendant company in its true name, which the court permitted to be done. The respondent, having thus submitted itself to the jurisdiction of the court, cannot now by a collateral attack be permitted to successfully assail the judgment therein rendered. 1 Black on Judgments (2 Ed.), 245, 246, and cases cited. We are of the opinion that the judgment rendered against respondent in the Illinois court is a valid and binding judgment, and that the ninth finding of the trial court herein is erroneous and not supported by the evidence. The judgment is therefore reversed, with directions to said court to proceed in accordance with the views herein expressed; costs of this appeal to be taxed against respondent. BASKIN, C. J., and BARTCH, J., concur. 96 40 Meyers v. Mining Co. JOHN W. MEYERS, Respondent, v. THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Appellant. No. 1557. (77 Pac. 347.) 1. Master and Servant: Injuries to Servant: Evidence: Opinions. In an action for injuries to a servant where one of the principal grounds of negligence alleged was that the place of work was insufficiently and improperly lighted, and this allega. tion was denied by the answer, the question of the sufficiency of the light was for the jury, and conclusions of witnesses that the light was insufficient were inadmissible.1 2. Same: Subsequent Conditions. In an action for injuries to a servant where plaintiff testified that there was no plank at a place where it was necessary that there should be one, testimony that about three hours after the accident an employee noticed that there was a plank there, where it appeared that no one was working at or about the place in the meantime, and it was not shown that there was any change from the conditions existing at the time of the accident, was competent, as showing that shortly after the accident the same conditions existed. 3. Same: Questions for Jury. The questions of the truth of offered evidence and the weight to be given to it are for the jury, and not for the court, to determine. MCCARTY, J., dissenting. (Decided June 20, 1904.) Appeal from the Third District Court, Salt Lake 'Black v. Telephone Co., 26 Utah 451, 73 Pac. 514; Stoll v. Daly Min. Co., 19 Utah 271, 57 Pac. 295; Hayes v. Southern Pac. Co., 17 Utah 99, 53 Pac. 1001. Meyers v. Mining Co. Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. REVERSED. lant. Messrs. Sutherland, Van Cott & Allison for appel Messrs. Sullivan & Barnes for respondent. BARTCH, J.-This action was brought to recover damages for personal injuries, which the plaintiff claims he received because of the negligence of the defendant. In the complaint, so far as material to this decision, it is alleged that on January 28, 1902, the plaintiff was in the employ of the defendant company at its smelting works, and while so in its employ was ordered by defendant to assist in passing crushed ore from a certain ore bin, through chutes, into an ore car; that previously the plaintiff had been employed as a helper in the roasting department, but had not until that day assisted in passing ore through the bins; that it was necessary for him, in performing such work, to stand or sit on a narrow plank or platform, about six inches wide, extending around the top of the bin; that same was not a reasonably safe place, or sufficient for him to perform the work; that defendant had negligently permitted crushed ore to collect and remain upon the platform, thereby increasing the unsafeness thereof, and had negligently failed to provide any other place for plaintiff to stand or sit; that the place and premises were insufficiently and improperly lighted; that by reason of the neglect of defendant to provide a safe place for plaintiff to perform the work, and to sufficiently and properly light said place and premises, plaintiff fell from the platform into the bin; that, after falling into the bin, 28 Utah-7 |