#### R. L. McCOLLUM v. SID STACK.

(Filed 29 October, 1924.)

1. Actions — Appearance—Courts—Jurisdiction—Waiver.

An appearance is general when tbe defendant answers to tbe merits of tbe case and thus acknowledges tbe jurisdiction of tbe court by whatever name, whether special or otherwise, tbe pleader calls’it, and all defects in tbe service of tbe summons are thereby waived by him.

*4632. Same — Appeal—Exceptions.

Where a defendant enters a special appearance for the purpose of a motion to dismiss the action, he loses whatever right he may thereby have acquired by failing to except to the order of court denying his motion, and may also acquiesce in the jurisdiction of the court by his conduct thereafter.

Appeal by plaintiff from Lane, J., at November Term, 1923, of ROCKINGHAM.

. Tbe facts are stated in tbe opinion.

Ivie, Trotter & J ohnston for plaintiff.

Leland Stanford for defendant.

Adajis, J.

Tbe plaintiff instituted an action in "a justice’s court and sued out a warrant of attachment against tbe defendant for tbe recovery of $200 alleged to be due for goods sold and delivered. Tbe defendant appeared by bis counsel and moved to vacate tbe warrant of attachment on the ground that tbe affidavit, tbe undertaking, and tbe warrant were defective. Tbe motion was overruled and tbe defendant without excepting filed a written answer. Thereafter on defendant’s motion tbe cause was continued and on tbe day set for tbe bearing be demanded a trial by jury. After another continuance tbe case was tried and tbe issues were answered and judgment was rendered in favor of tbe plaintiff. Tbe defendant appealed to tbe Superior - Court and after several other continuances tbe case came on for bearing when tbe defendant, assuming to enter a special appearance, moved to vacate tbe attachment and dismiss tbe action. The motion was denied at that time, but during tbe trial it was ascertained that tbe summons and warrant of attachment bad been served on Sunday, and tbe judge, bolding that tbe service was void, dismissed tbe action; whereupon tbe plaintiff appealed to tbe Supreme Court.

It is not denied that tbe .magistrate issued tbe summons and tbe warrant of attachment. If, then, tbe defendant entered a general appearance and submitted himself to tbe jurisdiction of tbe court it is immaterial whether or not tbe summons was actually served. If be made a general appearance it is likewise immaterial for tbe present purpose whether tbe service was void or merely irregular and voidable. C. S., 3958 and 168 (5); Cowles v. Brittain, 9 N. C., 204; Bland v. Whitfield, 46 N. C., 122; S. v. Ricketts, 74 N. C., 187, 192; Devries v. Summit, 86 N. C., 126, 131; White v. Morris, 107 N. C., 93.

Upon tbe facts appearing in tbe record we are of opinion tbe defendant’s appearance was general, not special. Tbe pretended special appear-*464anee in the magistrate’s court was limited to a motion to vacate tbe warrant of attachment; nothing was then said in reference to dismissing the action. When the motion to vacate the attachment was overruled no exception was noted, but a written answer was filed, and the jurisdiction of the magistrate was not questioned. “The court will not hear a party upon a special appearance except for the purpose of moving to dismiss an action or to vacate a judgment for want of jurisdiction, and the authorities seem to hold that such a motion cannot be coupled with another based upon grounds which relate to the merits. An appearance for any other purpose than to question the jurisdiction of the court is general.” School v. Peirce, 163 N. C., 424, 429. Again, in Motor Co. v. Reaves, 184 N. C., 260, 262: “Said an able and learned judge (Justice Mitchell), in Gilbert v. Hall, 115 Ind., 549 : ‘A special appearance may be entered for the purpose of taking advantage of any defect in the notice or summons, or to question the jurisdiction of the court over the person in any other manner; but filing a demurrer or motion, which pertains to the merits of the complaint or petition, constitutes a full appearance, and is hence a submission to the jurisdiction of the court. Whether an appearance is general or special does not depend on the form of the pleading filed, but on its substance. If a defendant invoke the judgment of the court in any manner upon any question, except that of the power of the court to hear and decide the controversy, his appearance is general.” There are cases where the defendant may make a quasi appearance for the purpose of objecting to the manner in which he is brought before the court, and, in fact, to show that he is not legally there at all, but if he ever appears to the merits he submits himself completely to the jurisdiction of the court, and must abide the consequences. If he appears to the merits, no statement that he does not will avail him, and if he makes a defense which can only be sustained by an exercise of jurisdiction, the appearance is general, whether it is in terms limited to a special purpose or not. Nichols v. The People, 165 Ill., 502; 2 Enc. Pl. and Pr., 625.” See, also, Barnhardt v. Drug Co., 180 N. C., 436; Currie v. Mining Co., 157 N. C., 209, 220; Scott v. Life Asso., 137 N. C., 515.

In the judgment rendered in the Superior Court there is a recital that the defendant through his counsel had entered a special appearance and had moved “to dismiss the summons and warrant of attachment”; but since he had entered a general appearance in the magistrate’s court, had filed an answer, had appealed from a judgment rendered on the merits, and had consented to a continuance in the Superior Court he could not by the use of a phrase transform the nature of his previous *465acts. “If tbe appearance is in effect general, tbe fact tbat tbe party styles it a special appearance will not change its real character.” Scott v. Life Asso., supra.

If, however, tbe defendant’s appearance bad been special and tbe motion in tbe magistrate’s court bad been addressed to tbe dismissal of tbe action, be would have been in no better situation, because be did not except to tbe denial of bis motion. Allen-Fleming Co. v. R. R., 145 N. C., 37, 41; Moody v. Moody, 118 N. C., 926.

By making a general appearance and filing an answer upon tbe merits tbe defendant waived any defect in tbe service of tbe summons. Tbe statute provides tbat tbe voluntary appearance of a defendant is equivalent to personal service of tbe summons. C. S., 490. Pursuing tbe subject the Court said in Harris v. Bennett, 160 N. C., 339: “Tbe record of tbe proceeding for tbe sale of tbe land, which was made a part of tbe same, discloses tbat a summons was issued, but not served, but tbat tbe defendants named in tbe writ came in and answered. This is equivalent to appearance, and waives tbe service of process, tbe object of which is to bring tbe defendants into court and to subject them personally, by service of tbe writ, to its jurisdiction. If they come in voluntarily and appear or answer, tbe same result is accomplished. A general appearance cures all defects and irregularities in tbe process. Wheeler v. Cobb, 75 N. C., 21; Penniman v. Daniel, 95 N. C., 341; Roberts v. Allman, 106 N. C., 391; Moore v. R. R., 67 N C., 209.”

Tbe judgment dismissing tbe action is

Eeversed.