As I view it, the question here is a narrow one. Defendant appeared specially in the superior court solely for the purpose of objecting to that court's jurisdiction over his person because of the alleged invalid service of the plaintiffs' writs. He excepted to the overruling of his pleas in abatement setting up that objection and now seeks here a review of the superior court's rulings. Plaintiffs moved in this court to dismiss defendant's bills of exceptions and contended that they were premature.
The precise question raised by each motion may be stated as follows: Is a defendant in such circumstances required either to stand on an adverse ruling on his plea and allow *Page 414 the case to go against him by default or to plead over and await an adverse verdict or decision on the merits before being permitted to obtain in this court by bill of exceptions a review of the superior court's ruling on the plea? The majority have answered that question in the affirmative. I think it should be answered in the negative. I am further of the opinion that the question involves more than a mere matter of policy in the choice of one method of appellate procedure over another. As I see it there is a question of justice involved. Were this not so I would refrain from expressing this dissent.
Whether a defendant in such circumstances may plead over and contest the case on the merits without waiving his special appearance or his right to prosecute after verdict his exception to the adverse ruling on his plea is an entirely different question and it is not involved here. In this state that question has been answered in the affirmative. American Electrical Works v. Devaney, 32 R.I. 292. The real fundamental question in the instant cases, however, is not whether defendant may so act but whether he must before such ruling will be reviewed here. As far as I am aware that precise question has not heretofore been squarely presented to this court and fully considered and decided. The opinion in Colaluca v. Firstenberg Bottlers'Supplies, Inc., 65 R.I. 39, does not pass upon this question. It merely refers to the fact that we had previously dismissed the defendant's bill of exceptions on the plaintiff's motion that it was premature. The record of that case does not show that an opinion was filed at that time. Apparently the ruling on the motion was made from the bench without opinion. Manifestly we did not then avail ourselves of the opportunity for the more mature consideration which we have given to the same question in the case at bar. At the hearing on plaintiffs' motions to dismiss the instant bills of exceptions we denied them without prejudice so that they might be more fully considered at the hearing on the merits. *Page 415
In Chew v. Superior Court, 43 R.I. 194, the question was adverted to but not decided. The real decision in that case was that certiorari did not lie because the petitioner had an adequate remedy by bill of exceptions. In the superior court petitioner had appeared specially and moved to dismiss the plaintiff's action on the ground of lack of jurisdiction. That motion was denied and petitioner excepted to such denial. This court said that the petitioner could have such ruling reviewed on a bill of exceptions. The writer of the opinion indulged in a further discussion but it was not necessary to the decision on the facts before the court. In this regard it is significant that the syllabus contains but the one point mentioned above that certiorari did not lie because the petitioner had another adequate remedy.
In my opinion neither the Colaluca case nor the Chew case is decisive of the precise question here, although I concede that there is language in the opinion in the latter case which gives aid and comfort to the plaintiffs in the instant cases. However, the case itself is, I think, far from being a precedent in the true sense. For this reason we are, in my opinion, free from the trammels of precedent and more or less at large to decide this case according to what we consider will be more consonant, in the circumstances, with justice.
The time for review in this court by bill of exceptions of alleged errors committed by the superior court has been marked out with considerable definiteness in Troy v. ProvidenceJournal Co., 43 R.I. 22. In almost every conceivable situation which may arise in the trial of an action at law in that court it would seem that such decision requires a party aggrieved by any alleged error to await a final determination of the case there before coming here for relief on exceptions, to the end that appellate review piecemeal may be avoided as much as possible. With that view I am in accord. However, I am of the opinion that in the unusual and extraordinary case where defendant appears specially *Page 416 solely for the purpose of objecting to the superior court's exercise of jurisdiction over him he ought to be entitled to have the validity of such objection finally determined before being required either to default or plead over to the merits.
The main reason for my view is that, unlike an aggrieved party in any other situation, if his objection should ultimately be sustained by this court after he had been put to the cost of a trial on the merits, he would not be entitled to a judgment for costs because the law is well settled that where a court has no jurisdiction it has no authority to enter any judgment for costs.Dunn v. Ball, 2 R.I. 450; Turks Head Tailoring Co. v.Anthony, 38 R.I. 7; David v. David, 47 R.I. 304.
Aside from that there is a still further reason. The way of a defendant, who excepts to the overruling of his plea to the jurisdiction and then pleads over to the merits, is beset with hidden dangers to the maintenance of his special appearance and the continued validity of his exception. Since pleading over in such circumstances was formerly tantamount to a general appearance, and still is in several jurisdictions, it is required with some strictness that the defendant thereafter shall not seek affirmative relief from the court under penalty of waiving his special appearance. Receivers Middlesex Banking Co. v. RealtyInvestment Co., 104 Conn. 206. And there is authority that in order to avoid a waiver of such appearance the defendant must persist in his objection to the court's jurisdiction throughout the proceedings to final determination. 6 C.J.S. 62, § 21. What is or is not affirmative relief in such a case is not always easy to determine. For example, in Chew v. Superior Court, supra, it was urged, although not passed upon, that petitioner as defendant below waived his special appearance merely by stipulating with plaintiff for an extension of time for pleading.
In my opinion it is not entirely fair to a defendant to subject him to such danger of waiver by forbidding him *Page 417 to come here unless he defaults or until a final determination of the case in the superior court. Nor is it equal justice to force him to the cost of a trial and then if his objection to the superior court's jurisdiction is later sustained by this court to send him out of court, as we must, without even his costs. I do not quarrel with the rule which accords him the right to plead over on the merits, if he so desires, without waiving his special appearance and his exception, but I am firmly of the opinion that neither justice nor policy requires that he be compelled to do so before seeking a review in this court of his exception. He ought to be permitted to elect whether to seek review immediately or wait until a final determination of the case on the merits.
For the above reasons, I am constrained to dissent.