An action is instituted in a court of limited jurisdiction by the service of the summons upon several of *1060the parties named as defendants, but not upon all. An attorney serves notice that he has been retained to defend the action in behalf of all parties named in theosummons, and demands a copy of the complaint. The complaint served alleges that all the defendants are residents of the county. The attorney thereupon served a joint answer, containing a general denial and also an allegation that the defendants not served were nonresidents. The plaintiff accepted the notice of appearance and the answer without objection, and went to trial upon the issues presented by the pleadings. Assuming that the general, unqualified, or unconditional appearance by the persons not made parties to the action by service of process did not constitute a waiver of the defense, dependent upon their nonresidence, and a submission of their persons to the jurisdiction of the court, the question presented for determination is whether, in an action founded in tort, persons not made parties to the action may put in a special appearance, by answer or in any other mode, for the sole purpose of ousting the court of jurisdiction of the resident defendants; in other words, whether the court, upon the application of such persons, made either by direct motion, or by answer and motion upon the trial, will oust itself of the jurisdiction acquired over those who were made parties to the action by service of process. Clearly, in an action of this character, the parties not served had no legal right to force themselves into the suit, against the plaintiff’s objection, with the purpose of defeating the action. McKnight v. Baker, 1 How. Prac. 201; Tracy v. Reynolds, 7 How. Prac. 327; Manufacturing Co. v. Krause, 1 Hilt. 560. Otherwise as to joint-liability partners. Fox v. Brooks, 7 Misc. Rep. 426, 27 N. Y. Supp. 975; Wellington v. Classon, 18 How. Prac. 10.
But it is contended that because the plaintiff accepted the answer, and went to trial upon the issues presented, he thereby consented to consider the persons as parties to the action, to all intents and purposes, and to litigate the issue as to residence, and, upon his failure to establish the fact, the court was ousted of jurisdiction over the resident defendants. Let us see if that is the legal consequence or result. When the plaintiff accepted the notice of appearance and retainer, he had the right to rely upon the assumption that all the defendants thereby elected to submit their persons to the jurisdiction of the court. The answer served qualified the general appearance, and made it special, and the plaintiff was thereby notified that these nonresidents did not submit their persons to the jurisdiction of the court at all, with the intention or for the purpose of litigating any matter between themselves and the plaintiff, but that they simply came into the suit with the sole object of dismissing it as to the resident defendants. Of themselves the court acquired no jurisdiction by service of process, or by the general appearance (this we assume), but they make a special appearance, and declare that they will not submit . to the jurisdiction; and not only this,—they demand that the court shall proceed no further against the other wrongdoers, but shall surrender the jurisdiction acquired. Such a proceeding as this *1061ought not to be entertained for a moment. A party not served should not be permitted to intervene in this manner and to take an ambiguous position. He should either appear and abide the consequences, or not appear. He cannot occupy an uncertain status, partly appearing and partly not appearing. The appearance here was simply for the purpose of making a motion to dismiss an action against others, to which he is not a party, and to which he refuses to be a party. It is an appearance “under protest.” If, then, the answer is to determine the nature or quality of the appearance, it is the appearance in the action, and, as they decline to come in and submit to the jurisdiction of the court, they, in effect, declare that they are not parties to the action, and refuse to become such for the purpose of litigating any of the matters alleged in the complaint. They are not, therefore, in a position to move for a dismissal of the action as to those who are parties. In effect, they say: “We have not been made parties to this action, and no judgment can be rendered against us, and we decline to come into this action to defend ourselves against any claim asserted; but we desire to appear and prove to the court that we are nonresidents, and that the court should proceed no further against the actual defendants. In other words, the sole purpose of their appearance is to protect the resident defendants from liability to judgment in this suit. Now, if it were the proper practice or method of procedure (which it is not) to raise the objection of jurisdiction, dependent on residence, by direct motion founded on affidavits, could it be considered for an instant that these nonresidents would be at liberty to intrude themselves into the action by making a special appearance for the sole purpose of ousting the court of jurisdiction over the resident defendants? Would any court listen to such an application? Most certainly not. Is not a special appearance by answer the same, in legal effect, as a notice of motion? Where the complaint alleges residence, issue must be taken upon the averment. If not, the defense of nonresidence is waived; it cannot be shown at the trial, and jurisdiction of the person is conferred. Hamburger v. Baker, 35 Hun, 456; Hankinson v. Page, 19 Abb. N. C. 274; Sullivan v. Frazee, 4 Rob. (N. Y.) 616. And so, also, even if the complaint contains no such allegation. Bunker v. Langs, 76 Hun, 543, 28 N. Y. Supp. 210; Ross v. Konor (Sup.) 2 N. Y. Supp. 169. The objection cannot be taken by motion, but must be by answer. The answer is equivalent to a notice of motion, and the notification is that the motion will be made upon the trial, upon the evidence presented. Such an answer the plaintiff is, of course, bound to accept from a defendant served with process. That the plaintiff would have the right to discontinue as to such a defendant,—at least, in an action in tort,—there seems no legal reason to doubt. But why should the plaintiff be compelled or required to discontinue the action as to an alleged nonresident, when he has no sufficient proof of the fact, or suffer the consequence of having his action dismissed as to all the defendants, where there is a several liability? When the nonresidence of one defendant is established, and the action is dismissed as *1062to him, it should be allowed to proceed against the others. In such case the constitutional and statutory provision is complied with; that is to say, all the defendants against whom judgment may be rendered are defendants. As to those who are nonresidents, no judgment can go against them, for the court has no power over their persons; but it ought not to follow that those who are within the power and subject to the jurisdiction of the court should escape liability to judgment on that account. The reason of the law—that parties should not be compelled to defend their rights in local courts distant or remote from their place of residence— is satisfied by dismissing the action, with costs, as to them; but the reason or purpose of the statute has no apparent application to those who are residents of the locality. We fail to perceive that the latter have any legal right or interest in that matter. Where action is brought in the' supreme court, a defendant may obtain a change of venue, of which right he is deprived in local court. There is judicial utterance to the effect that the defense is personal to the nonresident (Lewin v. Wright, 31 Hun, 327), and there is much legal truth in the observation. The objection may be waived by the person affected by the action in the local court foreign to his residence. If the nonresident should decline to set up the defense in his separate answer, would a plea to the jurisdiction by- the resident defendants be of any avail? We should say not, for the nonresident has a legal right to waive an objection that is merely personal to himself. It is competent to confer jurisdiction of the person by consent, even in courts of limited jurisdiction. That is well established by authority, and is founded on legal principles. The plaintiff was not bound to accept the special appearance by the nonresidents, whether by answer or in any other mode. Nor, having accepted it, was he bound to move for a discontinuance as to them, or suffer a dismissal of the action. If any motion of that character should have been made, he would be met with the objection that the nonresidents had theretofore appeared generally, and that the matter must be determined upon the trial. But if the assumption is true that the general appearance was nullified by the answer, and the only appearance was for the special purpose of raising the objection of nonresidence of the interveners, the latter were not parties to the action, or subject to the jurisdiction of the court, and were in no position to demand that the court should surrender the jurisdiction acquired over the resident defendants. An appearance for the sole purpose of objecting by motion to jurisdiction over the person is not an appearance in the action. Elliott v. Lawhead, 43 Ohio St. 177, 1 N. E. 577. A special appearance by way of answer is but another mode of accomplishing the same object as by motion. These parties had no right to appear with a reservation of an objection to the jurisdiction of the action as against the resident defendants. They are not to be allowed to intervene and appear with a protest against the jurisdiction, not only as to themselves, but all' the other defendants as well, and to oust the court of the jurisdiction acquired. If a party wishes to insist upon the objection that he is not in court,' he must *1063keep out for all purposes except to make that objection. He cannot be allowed to appear specially for the purpose of giving a qualified jurisdiction, with the sole object of obtaining a dismissal of the action as to others. They have come in, and insist that not only shall no judgment go against themselves (which, of course, could not be done), but also that no judgment shall pass against the other wrongdoers. Really, it seems not to be a question of “jurisdiction of the court” at all, in a proper sense, but one of venue. However, it does not pertain to the “jurisdiction of the court” per se. If it did, jurisdiction could not be conferred by waiver. Code Civ. Proc. § 499. But here the nonresident may waive by not pleading to it. Consent will confer it. The provision of the constitution should be interpreted in the light of the prior state of the law. Cooley, Const. Lim. 74, 80. That is, with regard to rendering judgment against one and dismissing as to others. Jurisdiction of county courts was not specified in the constitution of 1846. A reasonable interpretation, and one that is consonant to legal rules of practice and procedure, should be adopted. Defense of nonresidence may be waived even in justice’s court. Clapp v. Graves, 26 N. Y. 418; Osburne v. Gilbert, 52 Barb. 158.
The judgment should be reversed, and new trial ordered, with costs to abide the event.
HARDIN, P. J. (concurring).The nature of the action stated in the complaint is such that it might have been maintained against any one or more of the seven defendants, if the action had been brought in the supreme court. The county court of Monroe county had jurisdiction of the subject-matter, and of the persons of the five resident defendants. It may be said that it did not have jurisdiction of the nonresident defendants, and that they had an immunity from the jurisdiction of the county court, by reason of their nonresidence, conferred upon them by the restrictive words of the constitution; in other words, the constitution inhibits the county court from taking jurisdiction of nonresident defendants. The letter and spirit of the constitution are answered by awarding to the nonresident defendants protection against an action being maintained against them. The resident defendants are not protected by the letter and spirit of the constitutional provision from an action being maintained against them in the county court, inasmuch as the cause of action stated is one which the constitution authorizes the county court to consider and determine as against resident defendants. When the fact was made to appear that two of the defendants were nonresidents of the county of Monroe, those two defendants were entitled to have the action, so far as it related to them, discontinued, and the complaint, as to them, dismissed. That right might have been awarded to the nonresident defendants, and, because the nonresident defendants were entitled to that direction as to them, it does not follow that after such direction was given, and the complaint, as to such nonresidents, dismissed, the county court did not have jurisdiction of the subject-matter, the cause of action, and of the persons of the five *1064resident defendants. Judgment reversed and a new trial ordered, with costs to abide the event.