The opinion
ELLETT, Justice
(concurring and dissenting) .
I concur with the holding requiring trial between plaintiffs and the respondent, but I dissent from that part of the decision which says that the defendant Cox did not make a general appearance in this case.
The record shows that the original complaint was filed September 27, 1960, and that service was duly had upon Anaconda Company. Almost three years later an amended complaint was drawn and a motion made to file the same. This amended complaint was for the purpose of attempting to obtain jurisdiction over the insurance *128 carrier for the Anaconda Company, the contention being that defendant Cox was driving the automobile which injured plaintiffs with the permission of the Anaconda Company. The motion to file the amended complaint was noticed for hearing, and on November 6, 1965, the defendant Cox appeared by counsel, who orally objected to the filing of the amended complaint. At the time of the appearance counsel stated that he was appearing specially for the purpose of obj ecting to the motion before the court. The objection was overruled, the amended ■complaint filed, and on January 17, 1964, defendant Cox was served with summons in ■the State of Maryland.
It will be noted that at the time Cox appeared to resist the motion to file the aménd-■ed complaint, he had never been served with summons and was not before the court.
The law is well settled to the effect that any request for relief or protection taken 'by a defendant except to object to the jurisdiction of the court over his person which .action recognizes the case as being in court .amounts to a general appearance. See cas■es cited in Vol. 18 of Words and Phrases under the heading “General Appearance.” "Under the heading “Appearances” in 4 C.J., Section 27, there appears the following language:
Broadly stated, any action on the part of a defendant except to object to the jurisdiction over his person which recognizes the case as in court, will constitute a general appearance. Thus a party makes a general appearance by objecting to the jurisdiction of the court over the subject matter of the action, whether the objection is made by a motion or by formal pleading. * * * A general appearance is also made by * * * contesting or resisting a motion; * * * See also, 6 C.J.S. Appearances § 13, p. 42.
On March 3, 1964, the defendant Cox filed a motion to quash the service of summons and to dismiss the complaint. This motion was finally disposed of on the 19th day of November, 1964, by the court ordering the quashing of the service of summons upon Cox.
By appearing and objecting to the filing of the complaint, I think the defendant Cox made a general appearance. He could not be objecting to the service upon him at that time for no service had ever been had, and so long as service was not had upon him, he could not be hurt by the amendment. He asked the court for a favor, to-wit, not to permit the amended complaint to be filed, and this was an affirmative act which brought him squarely before the court.
Our Rules of Civil Procedure provide that the defense of lack of jurisdiction over the person may be coupled with other defenses in a responsive pleading or motion without waiving the claim of lack of jurisdiction. To this extent our law has been *129 changed from what it was under the code. However, the law regarding what constitutes a general appearance is the same under the rules as it was under the code. The only difference is that under the code the defendant would waive his claim of lack of jurisdiction by pleading to the merits of the case.
I think it is clear that the defendant Cox made a general appearance when he objected to the filing of the proposed amended complaint.
CROCKETT, C. J., concurs in the opinion of ELLETT, T.