The appellants have filed three specifications of error, as follows: “First, In overruling applicants’ motion to dismiss, on the grounds: Because the appellee at no time served notice on defendants to quit; because the complaint is not sworn to by the chief of the nation. Second. In overruling appellants’ demurrer to second amended complaint, which sets out that the court has no jurisdiction of the person of the defendant Conklin, or the subject of the action as to him; because the plaintiff has no legal capacity to sue defendant Conklin; because there is a defect of parties defendant; and because said amended complaint does not state facts sufficient to constitute a cause of action. Third. That the court had no jurisdiction of defendants Hargrove and Studebaker for the reason the statutory notice was not served on them by appellee prior to bringing suit, as shown by the record.”
The first error assigned is that appellee never served notice to quit upon appellants, and because the chief of the nation never swore to the complaint. It appears that this case has been before this court, and is reported in 3 Ind. Ter. Rep. 478. The judgment of the lower court was reversed upon two grounds: First, for the error of said court in overruling the demurrer of the appellants; and, second, for the error of the court in sustaining the motion of appellee for judgment on the pleadings, for possession of the property, and for costs. Had appellants stood upon their demurrer, and appealed to this court, the case would have had to have been dismissed as to appellee Shelton, as was held by this court in sustaining the first specification of error; but instead the appellants answered to the merits, and by so doing they waived the service of notice. In Hibbard vs Kirby, 38 Ark. 105, Judge English says: “Any defect in the summons of service was waived by filing an answer to the merits.” In Boyer vs Robinson, 6 Ark. 552, it is said: “By appearing and pleading to the merits of the action, a defendant waives any objection that he *135might otherwise take to the service of the writ.” See, also, the following: “Appearance waives any defect or want of process.” Murphy vs Williams, 1 Ark. 376; Jester vs Hopper, 13 Ark. 43; Hawkins vs Taylor, 56 Ark. 45, 19 S. W. 105, 35 Am. St. Rep. 82. “Appearance in response to writ of certiorari waives objections of want of application for the writ." Smith vs Parker, 25 Ark. 518. “Asking for a postponement of a trial held an appearance.” Epps vs Sasby, 43 Ark. 545. “Jurisdiction of the person is obtained by service of process, or by voluntary appearance of the party,’ or by some means authorized by law.” Works, Jur. Courts, p. 31, § 11; Callen vs Ellison, 13 Ohio St. 446, 32 Am. Dec. 448. As to the jurisdiction of the person: Works, Jur. Courts, p. 36, § 13; Freem. Judgm. § 119; 12 Am. & Eng. Enc-Law, 299; Damp vs Town of Dane, 29 Wis. 419; McCauley vs Murdock, 97 Ind. 229. “The appearance, to be special, must be on jurisdictional grounds. If upon any other ground, it is a general appearance, and gives the court jurisdiction.” Green vs Green, 42 Kan. 654, 22 Pac. 730, 16 Am. St. Rep. 510; Burdette vs Corgan, 26 Kan. 102; Alderson vs White, 32 Wis. 308.
The want of verification of the complaint is not ground for dismissal if the same is verified before trial. See Mansf. Dig. § 5086 (Ind. T. Ann. St. 1899, § 3291), which is as follows: “Where i complaints are filed without verification, as required by section 3260, the action shall not on that account be dismissed, if the verification be made on or before the calling of the action for trial.” The third section of the act of June 28,. 1898, provides as follows: “(3) That said courts are hereby given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who continue to hold said lands and tenements notwithstanding the objection of the tribe; and if it be found upon trial that the same are held unlawfully against the tribe by those claiming to be members thereof, and the member*136ship and right are disallowed by the commission to the Five Tribes, or the United States Court, and the judgment has become final, then said court shall cause the parties charged with unlawfully, holding said possessions to be removed from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of the same.” Ind. T. Ann. St. 1899, p. 28, § 57s. The allegations of the second amended complaint are clearly within the foregoing statute, and are as follows: “That defendants J. S. and Nancy Hargrove and Moses and Alice Studebaker were claimants to citizenship in the Cherokee Nation, which claim has been decided adversely, and the judgment has become final. Said defendants at the institution of this suit were holding and occupying said lands and improvements as claimants to citizenship in the Cherokee Nation, and defendant Conklin, on or about the institution of this suit, took possession of said lands and improvements jointly with the other defendants; and plaintiff says: “That by some agreement, connivance, understanding, or combine with the said defendants in this case the said Conklin took possession of the lands and improvements in controversy in this case jointly with the other defendants, and entered into a combine or agreement with the said defendants whereby they would jointly hold the lands and improvements in controversy in this case, contrary to and against the will of this plaintiff.” But appellants insist that, because appellee has not alleged that Conklin was a claimant to citizenship, and his claim adversely decided, therefore no jurisdiction as to his person or the subject of the action as to him can be-exercised, although he is alleged to be jointly in possession of the premises with the other appellants.
Section 4940, Mansf. Dig. (section 3145, Ind. T. Ann. St. 1899), provides as follows: “Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determina*137tion and settlement of the questions involved in the action.” The appellee having full authority under this statute to institute this action against all the appellants but Conklin, and Conklin having joined the other appellants in possession of the premises, AA'hich is admitted by the demurrer, he became a necessary party, and we think he was properly joined. That a misjoinder of parties defendant must be taken. advantage of by motion to strike, and not by demurrer, is the correct practice, see the following: “Misjoinder of defendants not a ground for demurrer.” Fry vs Street, 37 Ark. 42; Oliphint vs Mansfield, 36 Ark. 191. “Nor can the question of misjoinder be taken advantage of at the trial.” Railroad Co. vs Tyler, 36 Ark. 205; Vooker vs Robbins, 26 Ark. 660. “That a motion to strike, and not a demurrer, is the correct practice, there can be no doubt.” Tuttle vs Moore, 3 Ind. Ter. Rep. 712 (64 S. W. 585);; Gartland vs Nunn, 11 Ark. 720; Riley vs Norman, 39 Ark. 162; Turner vs Alexander, 41 Ark. 254; Organ vs Railroad Co., 51 Ark. 261, 11 S. W. 96. The second amended complaint, in our judgment, contained all the necessary allegations required by the statute, and was properly verified by the chief of the Cherokee Nation, and the demurrer to the same was properly overruled.
The judgment of the court beloAV was correct, and it is therefore affirmed.