University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1911 Preserving a Special Appearance Edson R. Sunderland University of Michigan Law School Available at: https://repository.law.umich.edu/articles/924 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Courts Commons, Jurisdiction Commons, and the State and Local Government Law Commons Recommended Citation Sunderland, Edson R. "Preserving a Special Appearance." Mich. L. Rev. 9 (1911): 396-411. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. PRESERVING A SPECIAL APPEARANCE. NO personal judgment against a defendant is valid unless the court which renders it has first obtained jurisdiction over the person of such defendant. This is elementary and funda- mental, and goes to the essence of the judgment. And such juris- diction must be secured through the actual service of .process upon the defendant against whom the judgment is sought or through his voluntary appearance in the action. In order that the service should-be effective to confer jurisdiction, it is necessary that the writ or notice served should substantially conform to the statutory ieqtiirements as to style, direction, desig- nation of court and parties, statement of cause of action, signature, indorsements and any other features which the law prescribes as essential.' It is also necessary that the act of service should satisfy the requirements of the law in respect to the person or officer who performs it; the time when and the place where it is performed, and the manner in which it is done.2 Especially in the case of service upon corporations is the manner of service subject to exact and technical regulation. Lastly, in order that the service may -confer jurisdiction to* render a personal judgment, an affidavit or return must be made by the person or officer making the service, showing that all those things have been done which the law declares are neces- sary..to constitute a legal service of process.3 "Due and proper ser- vice must appear upon the record before the court is authorized to render a judgment by default."' These various requirements are substantial, not formal. They are conditions of jurisdiction over the person, in the absence of a volun- tary waiver on the part of the -defendant. Failure to observe them may be fatal to the judgment. They are the primary elements of due process in judicial proceedings. A voluntary general appearance, however, is ordinarily a full and complete waiver of all of them. Process is a means of coercion, and where the defendant freely does that which the process is designed to compel, the occasion for it ceases. If the defendant against whom a personal judgment is sought. wishes to stand upon his rights, and refuses to waive substantial defects in process, service or return, he may, of course, ignore the 133 Cyc. 428-444. 232 Cyc. 448-461. * 32 Cyc. 496-S18. ' r Biack on judgments, ,Sm. 83. PRESERVING A SPECIAL APPEARANCE suit, and if the plaintiff succeeds in obtaining a personal judgment by default against him, he may attack the judgment on the ground of want of jurisdiction. This, however, is a dangerous method to em- ploy, for the obviou8 reason that the court may not agree with his contention and may refuse to set aside the judgment. He may thus find himself bound by an adverse judgment in a case to which he had a perfectly good defense on the merits, with no opportunity to present that defense. To avoid the serious consequences attendant upon this method of testing the jurisdiction 'of the court, the "special appearance!' was devised as a means for obtaining -a preliminary opinion from the court as to the necessity for submission to its jurisdiction, at a stage in the proceedings when a trial on the merits might sill be had if desired in -the event of an adverse ruling on the jurisdictional ques- tion. The right to employ a special appearance for this purpose is almost universally conceded by American courts in'the absence of a statute to the contrary.5 In a very few states the right has been expressly withdrawn by act of the legislature, and all appearances, whether for the sole purpose of questioning the jurisdiction of the court over the person of the defendant, or otherwise, are declared to be general ap- pearances carrying a waiver of all defects in process, service or re- turn. Thus, in Mississippi 6 and Texas. there 4re such statutes, and their validity has been sustained by the Supreme Court of the United States as against the objection that they constituted a denial of due process." The desirability of such legislation has not, however, com- mended itself to the federal courts, and they have refused to follow it when sitting in those jurisdictions.0 Recently an attempt on the part of the United States Circuit Court for the ninth circuit to com- pel every party to waive the benefit of his special appearance in case his contention was not sustained by the court, was declared invalid and ineffectual by the Supreme Court of the United States.10 Conceding the right of a defendant to enter a special appearance for the sole purpose of objecting to the jurisdiction of the court over his person, a most interesting and difficult question arises when the objection is overruled. What is the defendant to do in suchevent? How can he preserve his special appearance for review? Hardly another question of practice can be found which has given 54 3n. I. & P. xoS. 0 Code, x926, See. 3946. I Rev. St. Art. 1243. 2York v. State (i89o) 137 U. S. IS. 1OSouthern Pacific Co. v. Denton (1892) Z46 U. S. 2o2. ODavidson Marble Co. v. Gibson (1go8)213 U. S. 1o. 398 9MlCHX A LWA REVIEW rise to a more hopeless conflict of authority than this. One line of cases holds that the defendant must choose between two courses: either he must refuse to proceed further and withdraw from the case, allow judgment to go against him by default, and then attempt to have that judgment vacated on the ground of want of jurisdiction; or, abandon his special appearance entirely, appear generally and try the case on its merits. Another line of cases holds that he is forced to no such harshvhoice, but may note an exception to the order overruling his objection to the jurisdiction, plead to the merits, and on appeal or error may have the benefit of his exception on the juris- dictional question, if he desires to avail himself of it. The difficulty at the bottom of this conflict in the cases arises from the fact that tn oraer overruling a special appearance is not a final ordei- and is not appeaiable.11 No review of the order can be had directly. Consequently there is no way to obtain it other than on appeal from the final judgment. If this final judgment is by default, rendered after the overruling of the special appearance and the refusal of the defendant to proceed. further, the question of juris- diction to render the judgment is of course open on appeal or error,- for it cannot be claimed that the defendant has done anything to waive his right to raise it. But if he does not withdraw from the case upon the overruling of his objettion to the jurisdiction, but, after merely taking an exception, proceeds to plead to the merits and enjoy the benefit of a trial, the case is not so clear. Has he done anything which may be construed as a waiver of -his jurisdictional objection? Has he, in other words, by proceeding to the merits under such circumstances, in fact made a general appearance in the action and thus submitted himself to the jurisdiction of the court? .The question is a clean-cut one. Either pleading over and going to trial is a waiver, or is not a waiver, of the jurisdictional objection. Reasons may be found in support of each doctrine, and the authori- ties are quite evenly divided.. But no question of law or practice has come under the writer's observation which has been passed upon by the courts with so little consideration as this one. One would expect just the converse to be true, in view of the great importance always' attaching to .jurisdictional questions. But with a few conspicuous exceptions, judicial discussions of this question are trivial and super- IKansas Rolling Mill Co. v. Bovard (x88S) 34 Kan. 2 , 7 Pac. 62a; Brady v. To- ledo etc. R. R. Co. (1889) 73 Mich. 457. 41 N. W. 5o3; McCoun v. New York Central R- R. Co. (1872) 5o N. Y. 176; Ryan v. Davenport (1894) S S. D. 203, S8 N. W. 568; Prussian Nat. Ins. Co. v. Northwest F. & M. Ins. Co. (898) £9 Wash. a87, s3 Pa-. 158; Welsher v. Libby (zgoo) zo6 Wis. 291, 8z N. W. 143; Chappell v. O'Brien (x90) 22 App. Cas. D. C. x9o; Reynolds v. Bank (£9o3) 66 Kan. 46£, 71 Pac. 847; Powell Sv. Nolan (1903) 32 Wash. 403, 73 Pac. 349. - PR SERVING A SPECIAL APPEARANCE ficial. Most of the cases which pass upon the question contain no discussion whatever, even when the question is presented to the court for the first time.