#### Ella Spears, Administratrix, Defendant in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Plaintiff in Error.

1. Appeal and ebeob, § 800 * —when motion must be preserved in bill of exceptions. A motion to quash summons and to strike the declaration from the files can be made a part of the record only by a bill of exceptions.

2. Appeal and ebeob, § 824*-—section 81 of Practice Act construed. Section 81 of the Practice Act (J. & A. If 8618) does not change the rule as to the preservation of exceptions but only as to the removal of the record from the trial court to the court of review.

3. Appeabance, § 10*—when malting of motion does not constitute general appearance. A motion by defendant to quash a summons and to strike the declaration on the ground that the declaration did not follow the prcecipe as to the parties or the amount of damages, held not to constitute a general appearance because it called upon the court to determine the merits of the case.

4. Appeal and ebeob, § 783*—when bill of exceptions becomes part of record. The bill of exceptions becomes a part of the record from the time of signing and filing and not before.

5. Pleading, § 451*—grounds for strilting declaration. A motion by defendant to strike the declaration on the ground that it did not follow the prcecipe as to the parties and the amount of damages, held improperly overruled.

Error to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1914.

Reversed and remanded with directions.

Opinion filed November 9, 1914.

*617P. J. Kolb and W. F. Scott, for plaintiff in error; Bertrand Walker, of counsel.

Thompson & Thompson and Clark & Hutton, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Harris

delivered the opinion of the court.

This was a suit by defendant in error for ten thousand dollars brought in the Circuit Court of Saline county to the April term, 1911, against the Saline County Coal Company. Prcecipe for summons filed March 22, 1911. The cause was on May 13, 1911, continued generally. The declaration in the case was filed June 2,1911, against the Saline County Coal Company and plaintiff in error ad damnum two thousand dollars, this being in vacation after the April term, 1911. Summons was issued June 2, 1911, against the plaintiff in error alone, original return of summons dated June 2, 1911. Amended return of summons dated the eleventh day of September, 1911.

Upon motion of defendant in error on June 13,1911, leave of court was obtained permitting defendant in error to amend prcecipe and declaration in the case, making new parties defendant, viz., plaintiff in error, and ordered that the clerk issue an alias summons for said new parties defendant returnable to the next term of the said Circuit Court. April 10, 1913, order of court granting sheriff leave to amend return of summons against plaintiff in error. Prcecipe for summons filed in vacation July 31, 1913, against plaintiff in error, in an action on the case ad damnum two thousand dollars July 31, 1913, summons issued by clerk accordingly, returnable to the first day of September term, 1913. Return showing summons served August 28, 1913. On September 10, 1913, order of court showing motion under limited appearance to quash summons dated July 31, 1913, motion confessed and summons *618quashed. On September 12, 1913, motion by plaintiff in error by limited appearance to quash summons issued June 2, 1911, and strike declaration filed same day in so far as same relates to the plaintiff in error.

November 28, 1913, the court sustained the motion to quash summons and the same was quashed. The court reserved ruling upon motion to strike declaration and on the second day of December, 1913, overruled the motion to strike declaration, and on the sixth day of December, 1913, entered default against plaintiff in error for failure to plead. On the ninth day of December, 1913, suit was dismissed as to Saline County Coal Company and defendant in error was granted leave to file amended declaration and plaintiff in error ruled to plead by second Wednesday. On Wednesday, the tenth day of December, 1913, a default was entered against plaintiff in error. On Thursday, the eleventh day of December, 1913, a trial was had on the default and damages assessed by a verdict entered in the sum of two thousand dollars, judgment entered thereon in favor of defendant in error and against plaintiff in error for the sum of two thousand dollars and costs of suit.

Plaintiff in error by writ of error asks a reversal of the judgment for the following reasons:

First. Because the court did not obtain jurisdiction of the plaintiff in error.

Second. Because the amended declaration upon which the verdict was returned and judgment entered did not state a cause of action against plaintiff in error.

Third. Because the record in the case would not sustain a judgment against plaintiff in error for all the costs.

In considering the first error assigned, plaintiff in error calls the attention of this court to the certificate of the clerk that no bill of exceptions had been signed and filed. The record filed in this court seems to have *619been prepared and certified under section 81 of the Practice Act (J. & A. j[ 8618), the plaintiff in error filing praecipe for the part of the record it regarded as material and defendant in error filing praecipe with clerk for the part she regarded as material. The clerk accordingly prepared and certified the parts of record as called for without the bill of exceptions. It is argued by plaintiff in error that to bring the motion to quash summons and to strike the declaration before this, court for review it must be done by bill of exceptions. A .motion to strike a part of the files or for leave to file additional plea'is no part of the record unless made so by the bill of exceptions. Green v. Jennings, 184 Ill. App. 340. Motions for change of venue and for continuance are no part of '■ o record unless made so by the bill of exceptions. People v. Weston, 236 Ill. 104. The section of the Practice AePto which our attention has been called does not change the rule as to the preservation of exceptions but only as to the removal of the record from the trial court to the court of review. The bill of exceptions becomes a part of the record from the time of signing and filing of same and not before. Jurisdiction is never presumed. The record must affirmatively show jurisdiction. Counsel in this case proceed upon the theory that if the trial court obtained jurisdiction of plaintiff in error it was under its motion of September 12,1913, by entry of appearance and in no other way. This court could only examine the record in this regard and the motion when the same was properly made a part of the record by bill of exceptions, which has not been done. The importance of the first error argued, that of jurisdiction of plaintiff in error, is such that it should be considered and determined regardless of the way it is presented, and waiving in this case the failure of the record to preserve by bill of exceptions the motion. It is conceded that if the court obtained jurisdiction of plaintiff in error it was under the motion in question *620by voluntarily submitting to the court questions which called for a decision of the Court on the merits of the case.

The law as to when a party waives his right to summons or notice and submits to the jurisdiction of the court has been by many decisions of our Supreme Court established.- However, each case differs in the application of the law to the facts. In the case of Nicholes v. People, 165 Ill. 502, the court summarized the authorities upon the question and determined when a party submitted to jurisdiction--aid this decision is now the leading case in this State upon the subject and is so recognized by counsel on both sides in their argument of error in this case. The difference between counsel is-in the application of the law in that case to the facts of the case at bar.

- Plaintiff in error limited its appearance and had the right to so appear and question the sufficiency of notice to confer jurisdiction, and if it went no further the court would have no right to render judgment. If plaintiff in error appeared to the merits and made a defense which could only be maintained by the exercise of jurisdiction, the appearance is general whether it is in terms limited or not. 2 Encyc. of Pleading and Practice 625.

The praecipe for summons against the Saline County Coal Company filed March 22, 1911, ad damnum ten thousand dollars, the declaration filed June 2, 1911, against Saline County Coal Company and plaintiff in error ad damnum two thousand dollars, and praecipe filed July 31,1913, against plaintiff in error ad damnum two thousand dollars. A summons issued thereon, which summons was oh September 10, 1913, quashed by defendant in error confessing the motion to quash.

There were three papers on file in this case on December 2, 1913, when the court overruled the motion of plaintiff in error to strike the declaration, the two praecipes and the declaration.

*621The praecipes filed at different dates laying the 'damages at different amounts and against different defendants. The declaration including both defendants, one of which had filed pleas to the merits and the other denying jurisdiction. A declaration not following the praecipe theretofore filed as to parties or in amount of damages and filed as against another party without being preceded by praecipe for summons and without leave of court in term time or judge in vacation. It may be true that in this condition of the record it was immaterial to plaintiff in error whether the declaration remained on file or not, or whether it and the praecipe filed against another defendant agreed as to the amount of damages, and it is immaterial to the court. What the court had to determine was whether or not did plaintiff in error by voluntarily making such a motion, and assigning the reason that the declaration and the praecipe filed against another defendant differed in amount of damages, does any more than object to the manner in which it was brought before the court and to show that it was not legally there at all. A motion to strike a declaration on the ground that it was not filed following a praecipe for summons or by leave of the court in term time or vacation does not call upon the court to determine a question of merits, but only a question of procedure. A declaration not filed in accordance with our established rules of procedure is not legally a part of the files and should on motion be stricken. The fact that this declaration was preceded by a praecipe as to one of the defendants would give the filing of the same as against the other defendant no greater dignity than if the latter defendant was the only defendant mentioned in the declaration, and because a motion to strike gives as a reason that the damages laid in the praecipe referred to are ten thousand dollars, and in the declaration two thousand dollars does not call upon the court to determine a question of merits as to whether plaintiff in error was *622in any way liable to defendant in error from the allegations of the declaration. As was said in the case of Nicholes v. People, supra, the court can only pass upon a question going to the merits upon the hypothesis that •it has jurisdiction of the parties; and the objection in that case was in the nature of a general demurrer and called upon the court to decide whether the improvement had been built, paid for and accepted as alleged. So with all the authorities, when you reach the exact question submitted and the conclusion of the court that the party had conferred jurisdiction, it is where the party denying jurisdiction has called upon the court to decide the sufficiency of the allegations of a petition or declaration filed against it. This is not the case here, the reference to the ad dummm in declaration and praecipe is not by way of determining whether plaintiff in error is liable under the allegations of declaration or for how much, but as a matter of identification of parties under the two prcecipes filed, and that -the declaration should be stricken, first, because n did not follow the filing of any praecipe against plaintiff in error; and second, because no leave was sought or obtained to file it. The conclusion reached upon this record as to jurisdiction, we think, is supported by the facts and the. application of the law in the following cases: Ladies of Maccabees v. Harrington, 227 Ill. 511; Wilcox v. Conklin, 255 Ill. 604.

In the case of Wilcox v. Conklin, supra, a suit against two defendants, one of which pleaded to merits, the plaintiff in error filed his special appearance and motion to quash the service so had upon him and dismiss the suit. It was urged that the so-called motion was not a motion but an entry of appearance. The Court said: “While the motion was not strictly in proper form, it was intended for a motion and not a mere entry of appearance, and was properly so treated by the court. * * * As plaintiff in error was sued in the Municipal Court of Chicago,—a city in which he *623did not reside,—defendant in error had no right to have the suit to remain on the docket to annoy him, and when these facts were properly brought to the attention of the court the motion to dismiss as to him should have been allowed.”

In this case, while the motion was not strictly in form, each step in the proceeding shows plaintiff in error protesting as to, jurisdiction; and from the time the court passed upon the motion to quash the summons and strike the declaration, plaintiff in error took no further part in the proceeding. The court did not obtain jurisdiction of plaintiff in error, and the motion to strike the declaration as to plaintiff in error should have been sustained.

The other errors argued for a reversal of this judgment are with reference to what was done after the ruling by the court upon the motion in question, the loss of jurisdiction by the cause being dropped from docket, the filing of a new declaration and not an amended declaration, the default of defendant prior to the expiration of ten days, the sufficiency of the declaration to sustain the verdict and the entry of judgment against plaintiff in error for all costs.

As this case must be reversed on the question of jurisdiction it will be unnecessary to discuss the other errors argued, if any there are; if this case should proceed further, they will probably be obviated.

The Circuit Court did not acquire jurisdiction over the person of plaintiff in error, and judgment will be reversed and cause remanded with directions to sustain the motion to strike the declaration so far as the same relates to plaintiff in error.

Reversed and remanded with directions.