Opinion by
Hall, J.The appellees brought their suit against the appellants upon an account, and on a special contract. The notice was returned by the sheriff without service. At the term of the court to which suit was brought, the defendants below appeared and made application to continue the cause for want of notice. During the term, a default was taken against the defendants for want of an answer. The defendants then filed their motion to open up the default. This motion is not sustained by any affidavit. The motion was overruled and judgment given for want of an answer.
The only question presented, which we deem material, is, whether the defendants below made an appearance in the case, that would authorize the court to take jurisdiction of the persons of the defendants.
The rule adopted by this court, appears to be this, that a defendant may so far appear, as to object to the jurisdiction of the court, either over the person or subject matter of the suit, but if the party appearing by motion or otherwise, seeks to call into action any power of the court except such as pertain to its jurisdiction, it is an appearance. To appear and apply for a continuance, clearly admits a cause *440of action and a party. It concedes a cause over which the court has power to act. It amounts to a general appearance and waives defects in the service of process.
Cloud and O'Connor, for appellants. 3. Whicker, for appellees.Judgment reversed.