The following opinion on rehearing was filed December 7,1904. Judgment of reversal adhered to:
Oldham, C.This is a rehearing. The former opinion is found, ante, p. 267. The case is fully stated in that opinion. It is now urged that the objections raised by the defendant in error in the court below were to the jurisdiction of the court over the person of the defendant, and nothing more, because the grounds assigned relate alone to the jurisdiction of the person. The pleading filed in the court below states, “Comes now specially above named defendant for the sole purpose of objecting to the jurisdiction of the court, and for no- other purpose, and submits that the court is without jurisdiction of the subject matter or of the person of the defendant for the following reasons”; whereupon the reasons are set forth, ten in number. We are now urged to disregard the challenge therein made to the jurisdiction of the subject matter and treat it as sur-plusage. Our duty in this matter depends upon whether or not, under the “reasons assigned,” there could have been anything considered by the court except the sole *274question of jurisdiction over the person of the defendant; not upon what was considered, but what might have been properly considered and determined by the court. We have taken our code from Ohio, and the practice of that state is analogous to ours. In Smith v. Hoover, 39 Ohio St. 249, the court said:
“The appearance of a defendant in court for the sole purpose of objecting, by motion, to the mode or manner in which it is claimed that jurisdiction over his person has been acquired, is not an appearance in the cause, or a waiver of any defect in the manner of acquiring such jurisdiction; while, on the other hand, the appearance for the purpose of contesting the merits of the cause, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended such waiver or not. In respect to this question, an important distinction is made between an objection to the jurisdiction of the subject matter of the suit, and of the person of defendant, although complete jurisdiction in the court to hear and determine the action is not acquired unless the court has jurisdiction over both the subject matter and the person. An objection to jurisdiction over the subject matter is a waiver of objection to the jurisdiction of the person, whih an objection to the jurisdiction of the person is a waiver of nothing.”
With these considerations in view we turn to the “reasons assigned”:
“5. That the defendant is a foreign cooperative and mutual insurance company doing business in the state of Nebraska only by virtue' of a license issued to it by said state as such corporation, and neither the alleged cause of action, nor any part thereof, arose in Jefferson county or in the state of Nebraska, and the plaintiff is not now, and never has been, a resident or citizen of the state of Nebraska.
“7. That the said petition herein, under which the second alias summons Avas issued, Avas hied on the third *275day of August, 1900,' and summons issued thereon without a then present ability to serve the same upon the defendant, or its alleged agent or attorney, in said Jefferson county, Nebraska: that the said second alias summons under which service is alleged to have been had was issued more than one year after the filing of said petition under which it was issued, and after the court had twice sustained objections to its jurisdiction for the reason that, at the time the petition Avas filed and the cause commenced, no service of summons could be had upon the defendant in said Jefferson county.”
The 5th objection challenges the right of the plaintiff to bring and maintain the action in Jefferson county. This raises the legal question whether or not the alleged cause of action set forth in the petition was local or transitory. The challenge was made to the court by apt language in the formal part of the instrument and. in the reasons assigned, and is a jurisdictional question, not of the person, but of the subject matter of the action. And when followed by an exhaustive showing on this point, as Avas done, of the truth of these allegations, we can come to but one conclusion, and that is, it was the intention of the pleader to challenge the jurisdiction of the court over the subject matter,, and that he has done so both by his aver-ments and by the evidence. And again, the 7th assignment, if it means anything, is a plea of res judicata of the matters then pending before the court. It Avould be difficult to understand hoAV the language of this assignment could be used for the sole purpose of challenging the jurisdiction of the court over the person of the defendant. That, to avoid an appearance, the objections must be con-' fined to this purpose has been the holding of this court from its organization.
We therefore conclude that our former opinion is sound in principle and should be adhered to, and Ave so recommend.
Ames, C., concurs. Letton, C., not sitting.*276By the Court: For the reasons stated in the foregoing opinion, the former opinion is adhered to.
Reversed.