fendant being exempt under the universal rule Under Rev. Codes, § 6526, providing that the voluntary appearance of a defendant is equivalent to personal service of the summons and a copy of the complaint upon him, a general appearance must be voluntary to constitute a waiver of defective service of process. [Ed. Note.-For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. 24.] 3. APPEARANCE 24-GENERAL APPEARANCE -"WAIVER OF LACK OF SERVICE." officer does not make his selection of the par-ness, such service was void and inoperative; deticular act until the close of the state's case? To be sure it would be the more orderly procedure to require an earlier selection, but the court may in its discretion control the order of proof, and if at the proper time and in the proper way it admonishes the jury as to the particular one for which alone a conviction may be had, the defendant has no just cause of complaint. At most, the course of procedure adopted by the trial court can be regarded as nothing more than an irregularity which this court must disregard. Rev. Codes, § 9415. The omission to give specific instructions would be prejudicial error for otherwise each juror would be left to select the particular act upon which he would cast his vote, and the result might be that the defendant would be convicted of several acts instead of one. We think the court fully discharged its duty in requiring the county attorney to elect at the close of the state's case. If a jury is to be regarded as having any intelligence, in view of the specific directions in instructions 17 and 18, supra, the jury in this case could not have entertained any doubt as to the limitation imposed upon them. and served with summons while in the state Where defendant, resident of another state solely to attend the district court as witness, appeared specially to object to the jurisdiction, saving his exception, and again reserving the question raised by his special appearance in his answer, he did not, by general appearance, waive his right to object to the jurisdiction, since a "waiver" is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, while a party who saves his exception shall not be deemed to have waived it unless his intention is manifested. [Ed. Note.-For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. 24. For other definitions, see Words and Phrases, First and Second Series, Waiver.] 4. TRIAL 419 MOTION FOR NONSUIT WAIVER BY PROCEEDING. An exception to an order overruling a mowith the trial. tion for nonsuit is not waived by proceeding [Ed. Note.-For other cases, see Trial, Cent. Dig. § 982; Dec. Dig. ~419.] 5. PROHIBITION 10-EXISTENCE OF REME DY AT LAW-STATUTE. the writ of prohibition may be issued where Under Rev. Codes, § 7228, providing that there is not a plain, speedy, and adequate rem [6] It is argued that the court committed prejudicial error in submitting paragraph 10 of its charge. We agree that under the facts in this case, the latter part of the instruction relating to the period of limitation applicable, should have been omitted. There was no question that the offense, if committed at all, had been committed within that period. Evidently the court had in mind the section of the statute (Rev. Codes, § 9152) declaring that the precise time of the criminal act need not be alleged in the information, but that it may be alleged as having occurred at any time be-edy in the ordinary course of law, where relafore the filing thereof. Under the specific direction given in paragraphs 17 and 18, an instruction on this subject was not necessary. Even so, under these instructions the jury could not have understood that they could convict for any act other than that which occurred on December 25, 1914. Nor do we think the paragraph in conflict with the others. As limited and explained by them, the power of the jury was sufficiently defined. The judgment and order are affirmed. Affirmed. tor sought prohibition to restrain the district he had been served with process while in the court from proceeding with an action in which state for the sole purpose of attending district court as a witness, though he was a nonresident, the writ will be granted, despite the existence of a remedy by appeal, since an application of such character is addressed to the sound discretion of the court, and whenever it is made to appear that under no conceivable circumstance can the district court render a valid judgment because of lack of jurisdiction, the writ should be issued to save needless litigation. [Ed. Note. For other cases, see Prohibition, Cent. Dig. §§ 37-56; Dec. Dig. 10.] Prohibition by the State, on the relation of Thaddeus S. Lane, against the District Court of the Second Judicial District for the County of Silver Bow and the judges thereof. Peremptory writ to issue. John F. Davies, of Spokane, Wash., T. J. Davis, of Butte, and Gunn, Rasch & Hall, of Helena, for relator. Nolan & Donovan, of Butte, for respondents. HOLLOWAY, J. In an action pending in Silver Bow county wherein William H. Hall was plaintiff, and Thaddeus S. Lane, a res ident of Spokane, Wash., was defendant, We think the trial court erred in refusing service of summons was made in Butte while to quash the service of summons. Lane was there for the sole purpose of at- [2, 3] 2. Does a party who appears specialtending the district court as a witness. Aly to test the jurisdiction of the court and motion to quash the service was overruled; in the absence of the defendant and his counsel and by order of the court, the defendant was directed to answer within 20 days. Pursuant to the order, an answer was filed, admitting some of the allegations of the complaint and denying all others. Application was then made to this court for a writ of prohibition to stay further proceedings. Three questions are presented: (1) Was Lane exempt from service of summons under the circumstances? (2) Was service of summons waived by filing the answer? and (3) Is prohibition an available remedy? [1] 1. The overwhelming weight of authority in this country sustains the rule announced in 32 Cyc. 492, as follows: "Suitors and witnesses coming from foreign jurisdictions for the sole purpose of attending court, whether under summons or subpoena or not, are usually held immune from service of civil process while engaged in such attendance and for a reasonable time in coming and going." Considerations of public policy and the due administration of justice prompt the enforcement of the rule, to the end that the personal presence of witnesses from foreign jurisdictions in the local courts may be encouraged. In Diamond v. Earle, 217 Mass. 499, 105 N. E. 363, 51 L. R. A. (N. S.) 1178, Ann. Cas. 1915D, 984, the court expressed itself upon the subject as follows: who reserves his exception to the adverse ruling upon his motion, waive the advantage by his general appearance thereafter? Upon this question the authorities are in hopeless conflict. The author of the article on Appearances, in 3 Cyc. 525, treats the subject as follows: "In many jurisdictions the rule is well settled that, where a defendant appears specially, any error of the court in deciding adversely to him is waived by a subsequent general appearance; though in many others, and by what seems the sounder reasoning, it is held that a defendant does not lose the benefit of his attack on the Jurisdiction by thereafter answering and pleading to the merits, provided he obtain a ruling in relation to the objection to jurisdiction, and save exceptions to such ruling." To the same effect are 2 R. Č. L. 339; 2 Ency. P. & P. 629. In the note to Fisher v. Crowley, 4 Ann. Cas. 290, will be found collected the cases which sustain the doctrine that such appearance does not constitute a waiver of the defective process or service. In Black v. Glendenin, 3 Mont. 44, the court, considering the question now before us, said: "The respondent insists that the appellant his answer and proceeding to a trial. This posiwaived these errors and irregularities by filing tion is not tenable. It has been held in California that a party who moves to dismiss a defective summons, or set aside the return of the service of a summons, and saves his exception to the action of the court in overruling the motion, does not waive his right to be heard there"The rule has been stated generally that suit- on upon appeal, by appearing subsequently and ors and witnesses from a foreign jurisdiction are answering and submitting to a trial. Deideexempt from service of civil process while at- sheimer v. Brown, 8 Cal. 339; Gray v. Hawes, tending court and for such reasonable time be-8 Cal. 562; Lyman v. Milton, 44 Cal. 630; fore and after as may enable them to come from Kent v. West, 50 Cal. 186. The exceptions of and return to their homes. This statement is the appellant were saved properly, and were not broad enough to include the parties plaintiff as waived by his conduct in the action after the well as defendants and witnesses. The rule is motions to set aside the proceedings under the an ancient one. The reason upon which it rests summons and subpoena were refused." is that justice requires the attendance of witnesses cognizant of material facts, and hence About the same time the Supreme Court that no unreasonable obstacles ought to be of the United States, in Harkness v. Hyde, thrown in the way of their freely coming into, 98 U. S. 479, 25 L. Ed. 237, reached the same court to give oral testimony. Nonresidents can- conclusion, which was later approved in not be compelled to come within the jurisdic-Southern Pac. Co. v. Denton, 146 U. S. 202, tion to testify. As such testimony may be essential in the due administration of justice, they ought to be protected in coming voluntarily into our courts to aid in the ascertainment of truth and in the accomplishment of right results by the courts. It is not merely a privilege of the person; it is a prerogative exerted by the sovereign power through the courts for the furtherance of the ends of justice. Every party has a right to testify in his own behalf. He cannot do this freely, if hampered by the hazard that he may become entangled in other litigation in foreign courts. The rule is applied almost universally in behalf of witnesses coming from a foreign state." Skinner, Mounce & Co. v. Waite (C. C.) 155 Fed. 828; Fox v. Hale, etc., Min. Co., 108 Cal. 478, 41 Pac. 308; Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266 10 Am. St. Rep. 48; Coatsworth v. Hally, 177 Mich. 565, 143 N. W. 881; Cooper v. Wyman, 122 N. C. 784, 29 S. E. 947, 65 Am. St. Rep. 731; Andrews v. Lembeck, 46 Ohio St. 38, 18 N. E. 483, 15 Am. St. Rep. 547; Malloy v. Brewer, 7 S. D. 587, 64 N. W. 1120, 58 Am. St. Rep. 856. 13 Sup. Ct. 44, 36 L. Ed. 942. Counsel for respondents, however, insist that in State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 135 Am. St. Rep. 622, the decision in Black v. Glendenin was in effect, if not in fact, overruled. Black v. Glendenin involved the precise question now under consideration. State ex rel. Mackey v. District Court involved a question of waiver under these circumstances: In the case of Lemcke v. Makey et al. substituted service upon nonresident defendants was sought to be made. Mackey appeared specially to question the jurisdiction of the court, and, his objection being overruled, he then applied to the court for, and secured, an order granting him 40 days within which to answer to the merits. The decision in Black v. Glendenin proceeds upon the theory that the answer to the merits being made by or- able to the relator, and that the writ of der of the court, was not altogether the voi- prohibition should be denied for that reason. untary act of the defendant, and therefore | While our Code provides that the existence not a waiver. In State ex rel. Mackey v. of a remedy by appeal will defeat the right District Court, we held that defendant to relief by certiorari (Rev. Codes, § 7203), Mackey could not invoke the jurisdiction of the like provision is not found in the section the court to secure an order advantageous to applicable to the writ of prohibition. Unhim, and at the same time insist that the less the remedy by appeal, or by other procourt was without authority to make the or- ceeding, is plain, speedy, and adequate, reder. The distinction between the principles lief by prohibition may be granted in a involved in these cases is recognized by the proper case (Rev. Codes, § 7228). The exauthorities generally. 2 Ency. P. & P. 630. istence of a remedy by appeal does not necesIn order for a general appearance to con- sarily defeat the right to relief by prohibistitute a waiver of defective process or serv- tion. State ex rel. Marshall v. District Court, ice, it must be voluntary. Rev. Codes, § 50 Mont. 289, 146 Pac. 743. An application 6526. A party ought not to be deemed to of this character is addressed to the sound have waived a right unless his intention to discretion of this court (State ex rel. Mackel do so is manifest. v. District Court, 44 Mont. 178, 119 Pac. 476); and whenever it is made to appear, as in this instance, that under no conceivable circumstances can the district court render a valid judgment because of a lack of jurisdiction, the discretion should be exercised in favor of issuing the writ, to the end that litigants may be saved the needless trouble and expense of prosecuting their litigation to a fruitless judgment. "A waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right." State ex rel. Driffill v. City of Anaconda, 41 Mont. 577, 111 Pac. 345; Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714. Since this relator made a proper objection to the jurisdiction of the lower court, saved his exception, and in his answer again reserved the question which he had raised by his special appearance, we think he ought not to be held to have waived whatever advantage he had obtained. [4] A party who suffers an adverse ruling upon his demurrer or upon the introduction of evidence, does not waive the advantage by submitting to the ruling and proceeding according to the court's views. If the trial court commits error in passing upon a motion for change of venue or a challenge to a juror, the exception properly saved is available on appeal though the party against whom the ruling is made, proceeds to trial in that court and submits his controversy to the objectionable juror. So likewise, an exception to an order overruling a motion for nonsuit is not waived by proceeding with the trial; the defendant merely assuming the risk of supplying the deficiencies in the plaintiff's case. Cain v. Gold Mt. Min. Co., 27 Mont. 529, 71 Pac. 1004. These illustrations serve only to emphasize the rule that a party who once saves his exception shall not be deemed to have waived it unless his intention to do so is manifest.. In Black v. Glendenin, there was not anything from which an intention to waive could be inferred; while in State ex rel. Mackey v. District Court, the application to the court for a favorable order indicated the purpose to submit to the jurisdiction, which had theretofore been questioned. Mackey could not be in court for the purpose of securing an advantageous order, and out of court for every other purpose. We think the objection to jurisdiction was not waived by relator's general appearance. [5] 3. It is urged that the remedy by appeal from an adverse final judgment is avail 1. MANDAMUS 87-ACTS OF STATE CORPORATION COMMISSION-STATUTES-"PROCEEDING"-"PROPER PROCEEDING." * Civ. Code 1913, par. 3486, prescribes the form of application by foreign fraternal beneficiary societies to the Corporation Commission, licensed to transact the business of insurance in the state, and providing that, when the commission refuses to license any society, it shall reduce its ruling or order to writing, file it in its office, and furnish a copy thereof with a statement of its reasons to the officers of the society on request, and that its acts shall be reviewable by proper proceedings in any court of competent jurisdiction within Maricopa county. Civ. Code, par. 1558, provides: "If the proceedings be brought in the Supreme Court the court shall. trial shall be had in the county in which the *If brought in the superior court the proceeding is brought." Paragraphs 1553 and 1554 provide that a party beneficially interested, having no plain and adequate remedy at law, Court or the superior court to any inferior trishall be entitled to mandamus from the Supreme bunal to compel the performance of an act which the law specially enjoins on it, and for the forming of issues and a jury trial. A foreign fraternal beneficiary society made application for a license to transact business in the state in accordance with the statute, and the license was refused by the Corporation Commission on the ground that the refusal was within its discretion. Held, that the term "proceedings" meant the form of law or the mode in which a judicial transaction is to be transacted; that mandamus was within the term "proper pro ceedings," and would lie to review the commis- | Commission of all the papers, instruments, sion's action. and statements, with proper verifications, [Ed. Note. For other cases, see Mandamus, therein especially named and enumerated. Cent. Dig. §§ 189-194; Dec. Dig. 87. For other definitions, see Words and Phrases, First and Second Series, Proceeding.] 2. MANDAMUS 87-FOREIGN BENEFICIARY SOCIETY-RIGHT TO DO BUSINESS IN STATESTATUTE "MAY." It is alleged that, notwithstanding the application for license to transact business, which in all respects conformed to the law, the "said Arizona Corporation Commission, without just or legal ground or excuse, and without assigning any legal reason therefor, has refused and neglected, and still does refuse and neglect, to grant to plaintiff a permit and license to transact business in the state of Arizona. Constitution, art. 15, § 5, provides, that the Corporation Commission shall have the sole power to issue licenses to foreign corporations to do business in this state as may be prescribed by law. Civ. Code 1913, par. 3486, declares any society entitled to a license to transact business within the state upon filing with the state Corporation Commission the papers and No return to the alternative writ was made, statements therein enumerated, and furnishing but the appellant moved to strike it, and filed it with such other information as it may deem its demurrer to the complaint. The motion necessary to a proper exhibition of its business to strike and the demurrer both raised the and plan of insurance, and that the commission may issue a license to such society to do busi-point that the complaint showed upon its ness in the state. Held, that the Constitution face that the writ of mandamus was sought gave the sole power to issue licenses to the com- to control the discretion and the judgment of mission, leaving the Legislature to prescribe the kinds of corporations that might do business in the appellant Corporation Commission in the the state, and made it the duty of the commis- performance by it of a duty imposed by law sion to issue licenses to such corporations upon that is quasi judicial in its nature. The approper application; that the word "may" was pellant answered, admitting that: not used in a permissive or optional sense, but was mandatory, having the sense of "shall," so that the commission, on a proper application, could not arbitrarily refuse to issue a license, and that mandamus would lie to compel its issu It "is required by article 6 of title 24, Civil Code 1913, * to grant to all foreign, fraternal, and beneficiary societies coming within the definition and description of such societies as contained in said article and title which have foreign, fraternal, and beneficiary societies a complied with the requirements regulating such license, certificate, and permit to transact business in the state of Arizona, and further admits that plaintiff made an application for license and permit to transact its business in the state mission on the 22d day of April, 1915." Appeal from Superior Court, Maricopa of Arizona to the Arizona Corporation ComCounty; R. C. Stanford, Judge. Mandamus by Heralds of Liberty, a foreign fraternal beneficiary society, against the Arizona Corporation Commission. Judgment making the alternative writ absolute, and the defendant appeals. Affirmed. Wiley E. Jones, Atty. Gen., and Leslie C. Hardy and Geo. W. Harben, Asst. Attys. Gen., for appellant. George J. Stoneman, of Phonix, for appellee. Upon the trial it was admitted by the appellant that: The appellee "had performed the physical acts and had filed with the Corporation Commission of the state of Arizona the several instruments set forth in its verified complaint and application for alternative writ of mandamus filed herein." Upon the pleadings and the stipulation judgment was entered making the alternative writ absolute. From the judgment and the orders of the court overruling the demurrer and motion to strike, this appeal was taken. [1] It is seen from the admitted facts that the appellee had conformed to the requirements of law, and was entitled to a license to do business in the state, unless the contention of the appellant that the Corporation Commission's act in refusing the license was a discretionary one or a quasi judicial act is well founded, and not subject to revision in this proceeding. Paragraph 3486, supra, provides, among other things, that: ROSS, C. J. The appellant, the Arizona Corporation Commission, prosecutes this appeal from the judgment of the superior court of Maricopa county in mandamus proceedings requiring and compelling it to issue to the appellee, a foreign fraternal beneficiary society incorporated under the laws of the state of Alabama, a license authorizing the appellee to transact and carry on the business of fraternal insurance. The appellee showed in its complaint that it was one of the kinds of fraternal beneficiary societies described in article 6 of title 24 of Civil Code 1913, and "When the Corporation Commission refuses to that it had filed with the appellant, Corpora- license any society, or revokes its authority to tion Commission, on the 22d day of April, do business in this state, the commission shall 1915, its application for license to transact and file the same in the office of the Corporareduce its ruling, order or decision to writing the business of insurance in the state of tion Commission and shall furnish a copy thereArizona, which application was made a part of, together with a statement of its reasons, to of the complaint. In the particulars required the officers of the society, upon request, and the action of the Corporation Commission may be by paragraph 3486 of said chapter and title reviewable by proper proceedings in any court the application for license was sufficient, in of competent jurisdiction within the county of that it showed the filing with the Corporation | Maricopa, state of Arizona." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "The action of the Corporation Commis- Icedure has in it all the elements of a civil acsion," whether it be determined to be min- tion. The facts stated in the affidavit for the isterial, discretionary, or judicial, is by this both questions of law and fact. writ may be controverted by a return, raising The return statute made reviewable in the courts. From likewise may be controverted, and a trial had on the Constitution and laws of the state we the issues of fact thus raised, either before the think the superior court of Maricopa county court, a jury, or a referee, as the court may was the proper and competent tribunal to dict or findings not only directing the issuance order. Judgment can be entered on the verappeal to for a review of the action of the of a peremptory mandate, but for damages and Corporation Commission. Whether manda- costs, on which execution may issue. In other mus is the "proper proceedings" mentioned in words, the statute has been so framed as to the statute is another question. It is evident its scope and purport, whether these be cases of afford complete relief in all cases falling within that the legislative intent was to refer the willful violations of recognized rights or decomplaining party to some well-known stat- nials, made in good faith, that the rights conutory or common-law proceeding. It might tended for exist. The right to sue out the writ have provided for a summary hearing and dispute, but on what answer is given to the is not made to depend on the character of the review of the action of the Corporation Com- question: Can the ordinary course of law afmission in the superior court, as it did in ford a plain, speedy, and adequate remedy? If paragraph 3381, Civil Code, in reference to the ordinary course of law will furnish such a the revocation or suspension of licenses to do remedy, the writ will not issue; otherwise it will. It was to avoid circuity of action, thus business by other kinds of insurance corpo- doing away with the necessity of resorting to rations than fraternal. It did not see fit more than one proceeding for the enforcement to do that, but, instead, provided that when of a right, that the law was framed. This court the Corporation Commission refused to issue tween the modern and the ancient writ, and has has many times recognized the differences bea license or revoked a license to a fraternal repeatedly upheld the remedy in cases where corporation that such corporation could have formerly it would have been denied." such action reviewed "by proper proceedings in any court of competent jurisdiction.". We think that proceeding or "proceedings," as here used, has reference to "a prescribed mode of action for carrying into effect a legal right." The word has many different meanings, depending upon the context in which it is used, but we think its ordinary meaning and the meaning here intended, as gathered from the context, is the form of law or the mode in which a judicial transaction is to be conducted. 32 Cyc. 406. It is said that "under the Code of some states mandamus is regarded as a special proceeding." 26 Cyc. 142. Our statute defining mandamus and prescribing its procedure in paragraph 1558, Civil Code, says: If the proceedings be brought in the Supreme Court the court shall. * If brought in the superior court the trial shall be had in the county in which the proceeding is brought." In State ex rel. Brown v. McQuade, 36 Wash. 579, 79 Pac. 207, the Supreme Court of the state of Washington, in discussing a proceeding in mandamus and the use of the writ, said: We know of no form of action or proceeding, statutory or otherwise, open to appellee and offering relief, unless it be the proceeding by mandamus. Our statute provides that a party beneficially interested, there being no plain, speedy, and adequate remedy in the ordinary course of law, shall be entitled to a writ of mandamus from the Supreme Court or superior court, as the case may be— (whether the Governor is a member of such "to any inferior tribunal, corporation, board board or not) or person, to compel the performance of an act which the law specially enjoins tion; or to compel the admission of a party to as a duty resulting from an office, trust or stathe use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person." Paragraphs 1553 and 1554, Civil Code 1913. It provides for the forming of issues, and, if the answer raises any question of fact essential to the determination of the matter or affecting substantial rights of the party, a jury trial, in the discretion of the court, may be granted. Mandamus has been recognized as a "prop"Formerly mandamus was regarded as a preer proceeding" by the courts of other states rogative writ, issued, not as of right, but at the upon the application of insurance companies pleasure of the sovereign or state, in his or its to compel insurance commissioners to issue name, as an attribute of sovereignty; but with licenses and permits to transact business us the writ is not in any sense a prerogative writ, or a writ to be issued at the discretion of where, by the local law, such commissioners the court. It is a procedure under the Code, are the designated agencies for such purand any person who has a cause that calls for pose. And, where the insurance company has its invocation has the same right to sue out the complied with the requirements of the law in writ as he has to commence a civil action to redress a private wrong. As we said in State ex its application, the courts have directed the rel. Race v. Cranney, 30 Wash. 594, 71 Pac. issuance of a license. State ex rel. v. Fidel50, a proceeding in mandamus is a judicial in-ity & Casualty Co., 49 Ohio St. 440, 31 N. E. vestigation, the object of which is the determination of civil rights, the same as in ordinary proceeding; not only the determination of rights, but their determination in such a way as to culminate in an effective judgment. In our practice mandamus is nothing more than one of the forms of procedure provided for the enforcement 658, 16 L. R. A. 611, 34 Am. St. Rep. 573; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 South. 627, 72 Am. St. Rep. 143; Guy L. Wallace & Co. v. Ferguson, State Insurance Commissioner, 70 Or. 306, 140 Pac. 742, 141 |