The opinion
'BRANNON, Judgoíi,
(dissenting):
The plain real construction of the record is, that Ramsey, Gould and Guy asked a continuance, and thus appeared; but say that this is going too far. Then, we can say by the very letter of the record that they “appeared and asked the court to permit them to appear specially and ask a continuance of this causa for thirty or sixty days to enable them to prepare their defense, or to determine whether they would desire to appear generally, and stating that they did not desire to appear generally for said parties at this time, but that they desired to move the court to continue the cause without appearance other than specially for the purposes of the continuance”. Another part of the record says, that one ofCheir counsel “proceeded to argue at some length the right to such continuance *331 and appearance, and did move the court for leave to so appear specially and continue the case.” When counsel for those parties argued for right to make such special appearance, the plaintiff resisted any continuance and asked that the case be submitted for decree, and counsel for Kamsej', Gould and Guy then asked time “until next morning to determine what course they would pursue, the court not having acted upon the motion aforesaid; and counsel for plaintiff assented to said request, the court saying nothing, but tacitly assenting thereto; and later on the same day, within about half an hour, and before the court had taken any action, said Morrison, of counsel for said defendants, returned into court, and stated that they desire to withdraw and not appear in the case”, and in the presence of Morrison the plaintiff submitted the case for decree. What is this in plain intent but a motion to continue? It was either an appearance or not one; and if any appearance, what but a motion for continuance? But say that is going too far. Then it was a motion, not denying jurisdiction, but recognizing a case in court, and asking relief; that is, asking from the court an order in the ease giving leave to appear specially; and if such order be made, then to ask actual continuance. If leave had been granted, and a continuance had for sixty days, it would have been a general appearance. What difference that leave was not given? They moved for an order in the case, not denying the presence of a case or the jurisdiction or its power to make orders and decrees, but admitting that power. I will not argue in my-own language that this is an appearance justifying a decree, but will cite authorities to sustain this position.
“If a party appear in a suit for any purpose other than to object to the legalitj1' of process or its service, it is a general, not a special, appearance, and dispenses with service of process”. Frank v. Zeigler, 46 W. Va. 614 .
“Procuring or Consenting to a Continuance. — Procuring a continuance of a cause operates a general appearance; and likewise an application by motion, or otherwise, for a continuance, is a general appearance”. 2 Ency. Pl. & Prac. 633; Layne v. Railroad Co., 35 W. Va. 438 .
“An appearance by attorney, so as to secure an extension of the time to plead or answer, is a general appearance, and de *332 fendants cannot thereafter have their appearance taken as special to plead to the jurisdiction”. Briggs v. Stroud, 58 Fed. Rep. 717.
“A defendant is also considered to have made a general appearance when he applies for or obtains leave to answer, or when he applies for or obtains an extension of time to answer”. Cyc. 507.
“The appearance by a party who asks a postponement until his attorney could arrive is a general appearance, although the attorney, when he arrives, moves to quash the service as insufficient”. Epps v. Sasby, 43 Ark. 545 .
Justice Brewer said that the mere fact that a party proclaims or declares that his appearance is special does not make it so or convert what in law is a general appearance into a special appearance. Burdett v. Corgan, 26 Kan. 102 . Also Kawvalley Life Co. v. Lamke, 19 Pac. 337 . So Grantier v. Rosecrance, 27 Wis. 488 . The nature of the appearance of this case makes it a general appearance.
“It is imperative that a party must occupy no ambiguous position. A party must either appear at trial and abide the consequences, or not appear. He cannot occupy an uncertain status, partly 'appearing and partly not appearing”. 2 Ency. PI. & Prac. 593.
In the same volume on page 625 we find this:
“The principle to be extracted from the decisions on the subject as to when a special appearance is converted into a general one, is, that where the defendant appears and asks some relief which can only be granted on the hypothesis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance, by 'its terms, be limited to a special purpose or not. Where a party appears in court and objects by motion to the jurisdiction of the court over his person, he must state specially the grounds of objection' by not so stating them his appearance will be construed a general one, 'although he moves to dismiss on that ground”. Supported by Belknap v. Charlton, 34 Pac. R. 758, and Blackburn v. Sweet, 38 Wis. 578 . • Here I ask how could the court make the order asked by the defendant if it.had no *333 jurisdiction, if there was no ease? How could it do so except upon the hypothesis that the court had jurisdiction of the cause and person ?
“I think a defendant may appear specially to object to the jurisdiction of the court, either over his person or the subject matter of the suit, without waiving his right to be heard on the question in bank. But if, by motion or by other form of application-to the court, he seeks to bring its power into action, except on the question of jurisdiction, he will be deemed to have appeared generally. Such application concedes a cause over which the court has power to act”. Porter v. Chicago etc. R. Co., 1 Neb. 15 .
“The rule is this: If the defendant does anything, or takes any step in the ease which can be fairly construed into an admission that the case is properly in court, he will be held to have waived not only defects in the process, but the process itself”. Cropsey v. Wiggenhorn, 3 Neb. 108 . So in McKillip v. Harvey, 114 N. W. 155 .
“Acts Recognizing Case as in Court. In General. Any action on the part of defendant, except to object to the jurisdiction, which recognizes the case as in court will amount to a general appearance”. 3 Cye. 504.
Any action recognizing case in courtxis a general appearance. Lampley v. Beaver, 25 Ala. 534 .
Appearance for any other purpose than to question jurisdiction. 2 Ency. Pl. & Prac. 632 and 621; Zobel v. Zobel, 90 Pac. 191 .
“If jurisdiction is essential to the granting of the relief sought, the appearance is general, regardless of the purpose or character of the appearance”. Winter v. Union P. Co., 93 Pac. 331 .
“In order to .'object to the jurisdiction of the court, either over the person or the subject matter, a special appearance may be made, but if the appearance is for any other purpose, it will be considered general. An application for a continuance, is an appearance, and waives defects in the service of process”; Ulmer v. Haitt, 4 G. Green (Iowa) 439. An apt rule is this given in Low v. Stringham, 14 Wis. p. 225.
“If a party wishes to insist upon the objection that he is not *334 in court, he must keep out lor all purposes except to make that objection. Canhey v. Vance, 3 Chand. 315 -16; Thayer v. Dove, 8 Blackford, 567”. Likewise Security Co. v. Boston, (Cal.) 58 Pac. 942 . The parties withdrew their appearance. How could they, if there had been noire? But they had no consent of the court to withdraw. This is necessary. U. S. v. Curry, 6 Howard 106 . After such withdrawal, the appearance is not destroyed, but is still good for judgment. Eldrek v. Bank, 17 Wallace 546; Grand v. Gildersleave, 174 U. S. 603 ; Creighton v. Kerr, 20 Wallace p. 13.
By chance I meet two cases bearing on the subject. In Yale v. Edgerton, 11 Minn. 271 , the defendant appearing specially made a motion to set aside the summons' and later the amended summons, etc. These motions were both submitted to the court, and while under advisement, the time to answer being about to expire, the defendant obtained an order extending the time to answer, stating that he appeared specially. The court said: “To extend the time to answer is a favor which can only be granted in air action. And to ask a favor, an extension of time to answer on the merits, is a submission to the jurisdiction of the court. There is no protest in the act itself against the jurisdiction, as in a special appearance to vacate the summons”.
In Mulhevan v. Press Co., 24 N. J. 150, was a motion to dismiss for want of service of process, and later time was given to demur or plead. The court held this grant of time to plead or demur was not a general appearance; and said that if the motion for extension of time had been first made, it would have been an appearance. Remember that in our case, there was no exception in any form to jurisdiction or denial that there was a suit in court.
WILLIAMS, Judge, dissents and concurs in this opinion.