holding that nonappearance cannot serve as the basis to find waiver of the defense of personal jurisdiction, and that a party is free to ignore proceedings if the party believes the trial court does not have personal jurisdiction
How later courts described this case
- holding that nonappearance cannot serve as the basis to find waiver of the defense of personal jurisdiction, and that a party is free to ignore proceedings if the party believes the trial court does not have personal jurisdiction
- finding that a personal judgment rendered by a court without personal jurisdiction over the defendant is void and may be attacked collaterally
- waiver occurs where action is taken that is wholly inconsistent with assertion that trial court lacks personal jurisdiction
Written by the judges who cited it.
The opinion
SEILER, Judge,
concurring in part.
I concur only with that portion of the opinion which holds that a defendant does not, by failing to appear, waive the right to contest the trial court’s personal jurisdiction over him. As the principal opinion says, this is the issue in the case.
However, that portion of the opinion, commencing with footnote 4, dealing with whether a voluntary appearance by a defendant in and of itself constitutes a waiver of lack of personal jurisdiction is not necessary to the decision and should be reserved for decision where the issue is directly before the court. No such issue is presented in the case at bar. That issue is presented, however, in State ex rel. White v. Marsh, No. 62754, set for hearing at the January 1983 term. The Marsh case should not be prejudged by dicta in the present case, *95 where the issue is not presented, briefed, or argued. The defendant did not enter a general appearance or take any action constituting a voluntary appearance in the present case. Therefore, the question of what effect this has as a waiver of lack of personal jurisdiction is not before us. We should reserve a decision on that point for the Marsh case, where it is squarely presented.