Extended opinion
Clay, Special Judge.While concurring in the opinion of the court that appellant, by reason of this appeal, will not be before the trial court upon the return of the case, I desire to state some additional reasons for the conclusion I have reached. The doctrine that an appeal from a judgment void for want of proper process places the appellant in court on the return of the ease for all purposes of a trial was first announced by this court in the case of Grace v. Taylor, I Bibb. 430, decided in the year 1809. The opinion of the court is as follows: “It is considered by the court that, for as much as a copy of the petition and summons was not served on the defendant below, as renquired by the statute, but left at his residence with Ms wife, the judgment by default was therefore irregular, and is hereby reversed, and the cause is remanded to said circuit court; but as the defendant in that court hath appeared and prosecuted this writ of error, any further summons is unnecessary; therefore it is *381further considered that the canse he placed on the issue docket, and stand for trial in the said circuit as upon summons returned executed. ’ ’
In the above case, the defendant lived in the county, and the trial court had the power by proper process to bring' the defendant before the court, for. even if he had not entered his appearance by prosecuting the writ of error, a copy of the petition and summons could have readily been served upon him; but the doctrine has since been extended so as to include cases where the court could not obtain jurisdiction at all over the person of the defendant, unless he should enter his appearance by taking an appeal. The principle laid down in Grace v. Taylor was followed in other cases decided prior to and after the adoption of the Code. In none of these cases was any reason even' given in favor of the law announced; the court simply adhering in each instance to the precedent established. In our opinion, the venue of actions and the character and service of process were fixed by the Code. Though in many instances there are two of three jurisdictions in any one of which suit may be brought, the Code nevertheless requires that suit shall be brought in some one of those jurisdictions. . To say that the rights of plaintiff and defendant should be equal under the law, is simply to announce an elementary principle of justice. The plaintiff, of course, has the right to try his case wherever the Code permits, and certainly the defendant has the right to demand that it shall be tried nowhere else, and that he shall not be required to come into court except in pursuance of lawful process. If, in attempting to enforce this right, the defendant is virtually compelled to take an appeal, shall this court hold that he has abandoned his right under the law by his effort to enforce it in the *382manner prescribed by law. Yet the rule, laid down in Grace v. Taylor, if followed to its logical conclusion, would require us to so hold; for under that rule the plaintiff is given the right to select a jurisdiction not authorized by the Code, in the hope that the trial court may erroneously decide in his favor, and thus compel the defendant, if he does not wish tq risk his whole case upon the question of jurisdiction alone, and take the chances of having the judgment declared void, either to submit to the judgment, or enter his appearance by taking an appeal. Is not such doctrine violative of the spirit, if not the letter, of the Code, when it requires this court to say to every defendant who appeals from a judgment void for want of proper process: “You were not properly before the tidal court; your case was tried by a tribunal that had no right to try it; you took no steps that were not authorized by law; you protested at every stage of the proceedings; you saved every question of jurisdiction; but you have made a grievous mistake by appealing to this court for protection, for the only way that we can proteos you, is to send your case back to be tried by the same court which, wé have just held, had no right to try it?” That this is the effect of such doctrine may be gathered from the following forcible language of this court in the case of Stovall v. Stovall’s Adm’r, 39 S. W. 416, 19 Ky. Law Rep. 917: “By these cases (citing Grace v. Taylor and several subsequent cases announcing the same doctrine) the rule is established that, notwithstanding jurisdiction of the person can be required only by actual service or by a voluntary appearance, if a defendant appears and raises the question of jurisdiction over him, by showing that no process has been served on him, and the court agrees with him and sustains his. motion, he is *383not before the court; but, if tbe court holds against him, and on appeal he reverses the lower court, then he is before the court by reason of such appeal. ’ ’
Gould any argument against such law be stronger than the mere statement of the law itself? Shall jurisdiction be made to depend upon the error of the trial court, and the effort of the defendant to establish that error? Shall the right of appeal be virtually abolished in such cases by holding that the very purpose of the appeal is defeated by the appeal itself? Sbch doctrine may be venerable from its antiquity; it may be entitled to respect because it has the force of a long established precedent, but it neither meets the requirements of reason, nor satisfies the demands of justice. Por thece additional reasons, therefore, I think it should be held that appellant by prosecuting this appeal has not entered its appearance to the action.
Chief Justice O’Rear and Judge Terrell concurred in these views as well as in the principal opinion.