The opinion
Denied September 9, 1919.
Petition for Rehearing.
( 183 Pac. 476 .)
BURNETT, J.
By its petition for a rehearing the defendant urges that this court was wrong in the conclusion that having answered to the merits of the controversy between the parties and gone to trial on the issues so raised after having been defeated on the trial of its plea in abatement, the latter defense was waived. Section 74, L. O. L., as amended by Chapter 99, Laws of 1911, and as finally changed by Chapter 8, Laws of 1915, reads thus:
“The counterclaim mentioned in Section 73 must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following- causes of action:
“(1) A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim.
“(2) In an, action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.
“The defendant may set forth by answer as many counterclaims as he may have, including pleas in abatement. Such defenses shall each be separately stated and shall refer to the causes of action which they are intended to answer, in such manner that they may be intelligently distinguished; provided, that the defendant shall not be required to admit in his answer any liability pr indebtedness to the plaintiff in order to be permitted to plead a counterclaim.”
The defendant relies upon the clause,
“The defendant may set forth by answer as many counterclaims as he may have, including pleas in abátement. ’ ’
- It maintains that this is a warrant for joining in one answer all manner of pleas and defenses and concludes that in no case can waiver of any plea be predicated on such joinder.
*403 12. Conceding that the legislature made a new rule of pleading as to the matters that may he set forth in an answer, it did not undertake to construe the legal effect of what any defendant should put into that pleading. The statute does not dispense with the. common-sense rule that the different defenses must not he inconsistent' with each other and particularly that where a defendant by his answer first denies a thing and then further on in the pleading admits the same thing, the admission will control and the denial will be disregarded: Veasey v. Humphreys, 27 Or. 515 ( 41 Pac. 8 ); Maxwell v. Bolles, 28 Or. 1 ( 41 Pac. 661 ); Brown v. Feldwert, 46 Or. 363 ( 80 Pac. 414 ); Dutro v. Ladd, 50 Or. 120 ( 91 Pac. 459 ); Johnson v. Sheridan Lumber Co., 51 Or. 35 ( 93 Pac. 470 ); Peters v. Queen City Ins. Co., 63 Or. 382 ( 126 Pac. 1005 ).
In the instant case the effect of the defendant’s pleading is for it to say in one breath, “the court has not acquired jurisdiction of my person,” and in the other to declare, ‘ ‘ the court has jurisdiction of my person, seeing that I am here voluntarily defending on the merits of the case.” The defendant was either in court or it was not in court. Both could not be true at the same time and the admission to be drawn as a legal conclusion from its general answer that it is in court must prevail over its contention in the plea in abatement that it is not in court.
13-15. Jurisdiction is of the person and of the subject matter. The matter means the authority of the court to hear and determine the kind of case presented and is conferred by law independent of the act or consent of the parties. The lack of this element of jurisdiction is never waived but may be urged at any time during the progress of the litigation: Section 72, L. O. L., and authorities cited in note. On the other *404 hand, jurisdiction of a person sui juris depends either upon proper service of summons upon him or upon his voluntary appearance in court. Indeed, his appearance may be a special one limited to a particular purpose but if he appears and offers contest on the merits of the complaint it is universally held to be a general appearance giving the court sanction to hear and determine all the matters in controversy, providing of course that the court has authority in law over the kind of case presented.
In substance, plainly stated, the defendant’s position as disclosed by its pleading is that it is in court by its own consent, but was not brought in by service of summons. Being in court generally of its own volition is an- admission of the court’s jurisdiction over its person which must prevail over its denial of jurisdiction embodied in its plea in abatement.
The petition for rehearing is denied.
Modified. Rehearing Denied.
McBride, C. J., and Benson and Harris, JJ., concur.