This is an original proceeding instituted in this court, asking for a writ of mandamus against the Honorable Rhodes E. Cave, one of the .judges of the circuit court of the city of St. Louis, directing him to reinstate and proceed with the trial of the case of James P. Newell v. Frank M. Slater, an election contest, as to the right to , the office of Public Administrator of said city, lately pending in said court, before said judge, and by him dismissed. An alternative writ was issued and served upon Judge Cave, to which he filed a demurrer, thereby admitting the facts stated therein. They are substantially a.s follows:
Newell, the relator, and Slater were adversary candidates for the office of Public Administrator of the city of St. Louis at the November election of 1916; the Board of Election Commissioners of that city awarded the certificate of election to Mr. Slater. Within the time allowed by the statute the relator, Mr. Newell, served Mr. Slater with a notice of contest. This notice was served, however, not by the Sheriff, but by a. private individual. The contents of the notice of the contest is not here material and for that reason is omitted from the statement of the case. The affidavit of the private individual who served Mr. Slater is found in the return. This notice of contest was filed in the office of the Circuit Clerk on the 7th day of December, 1916, and was returnable to the February term, 1917, of the circuit court of the city of St. Louis.
On the 23rd day of December, 1916, the contestee, Mr. Slater, served the relator, Mr. Newell, with a notice of counter-contest, which also is immaterial here. . This likewise was served, not by a Sheriff of the city of St. Louis, but by a private individual.
*657The opening day of the February term of the circuit court of the city of St. Louis for 1917 was the 5th day of February, and on that day Mr. Slater appeared by his counsel and filed his notice of the counter-contest in court.
On the 24th' day of February, 1917, the relator served on his adversary an amended notice of contest. This again was served, not by the Sheriff of the city of St. Louis, but by a private individual. This amended notice of contest was filed by leave of court and in open court on the 24th day of February, 1917.
On the 1st day of March, 1917, the contestee, Slater, appeared again in open court, and filed his motion to strike out parts of said amended notice of contest. The ground upon which this motion was rested had nothing to do with the manner in which service had been had under either the original or amended notice of contest. It set up that the original notice of contest was so defective in the matter of averment respecting the names of disqualified voters and the grounds of their disqualification as not to admit of amendment. The contestee later appeared in court and submitted his motion to strike out parts of his amended notice of contest, and the same was overruled by the court.
On the 4th day of May, 1917, the relator filed his application for a recount of the votes cast. On the same day and for the first time the contestee, Slater, challenged the jurisdiction of the court to proceed with the matter by filing his motion to dismiss the proceedings, for the first time contending that the court was without jurisdiction, for the reason that the notice of contest had not been served by any officer of law authorized to serve process.
On the 4th day of June, 1917, the court sustained this motion to dismiss, whereupon followed this application for a writ of mandamus to compel the court (Judge Cave, presiding in the division where the controversy was pending) to reinstate the contest and proceed with the hearing and determination of the same in orderly course.
*658The correct decision of this case turns upon the proper time and manner of commencing and giving the notice of contest to the contestee as required in. Section 5924, Revised Statutes 1909, which reads as follows:
“No election of any county, municipal or township officers shall be contested, unless notice of such contest be given to the opposite party within twenty days after the vote shall have been officially counted.”
Defective waiver Ry Appearance, Counsel for respondent insists with much vigor that since the notice of contest prepared and made out by the contestant was served upon the contestee by a private individual, and not the Sheriff of the city of St; Louis, the same was ab initio null and void, to the same extent as if it had never Been prepared or seryed by any one; also that service of such notice cannot be waived and in support of that insistence counsel rely with much confidence upon the ruling of this court in the case of State ex rel. Woodson v. Robinson, 270 Mo. 212.
After a careful study of that case it must be conceded that the opinion therein contains language sufficiently broad and comprehensive to warrant the position taken by counsel in this case; but in that case it must be noticed that the contestee, from the very inception of the case, challenged the jurisdiction of the court over the cause for failure of proper service, and renewed the same at every proper step taken thereafter, so the question of waiver involved in this case was not properly before the court in that case for decision; and what was there decided as to this question was therefore, mere obiter, and not binding on the court.
In the case at bar, as appears from the statement of the case, which is conceded by counsel for all parties to be correct, the contestee repeatedly entered his general appearance in the cause, and at no time prior to May 4, 1917,. challenged the jurisdiction of the court for any reason. Upon that day the contestee for the first time filed his motion to dismiss the cause for the reason that the court acquired no jurisdiction over the subject-matter thereof, because the notice of contest *659had not been served by an officer of the law authorized to serve process, and that the same could not be waived.
Counsel for respondent seem to confuse the subject-matter of the 'cause with the person of the contestant. It is too plain for argument that the .contestant and contestee are the parties to the ca-use, and the contest of the title to the officer is the subject-matter thereof.
The jurisdiction of the court over the subject-matter of the cause is confessed by law, and its non-existence cannot be waived by the parties; but the service of process has to do with the jurisdiction of the court over the persons or parties to the cause, and that service may be waived by the appearance of the parties to the merits. The authorities are uniform on those questions. [Fithian v. Monks, 43 Mo. l. c. 515; State ex rel. v. Smith, 104 Mo. l. c. 422; State ex rel. v. Neville, 110 Mo. l. c. 348; Dowdy v. Wamble, 110 Mo. l. c. 284, and cases cited; Railway Co. v. Lowder, 138 Mo. l. c. 536; 7 Ruling Case Law, p. 1029; O’Brien v. People, 216 Ill. 354, and cases cited.]
The question here presented for decision is not a new one in this State, nor in the jurisprudence of other states. Long prior to the rendition of the decision in the case of Woodson v. Robinson, supra, it had been the well settled law of this State that the contestee, by entering his general appearance in the cause, pleaded to or contesting the merits thereof, waived the question of jurisdiction when not properly and timely challenged.
In the case State ex rel. v. Oliver, 163 Mo. 679, this court said:
“It is thought that James K. Young’s appearance as contestee before the clerk of the circuit court, and filing, a motion to require his opponent to give security for costs and also his motion to make Oliver’s notice of contest more definite and certain, were such appearances as cured a defective service if there were any. [State ex rel. Lemon v. Board of Equalization, 108 Mo. 235.] Besides that, Young appeared before the county clerk and filed a counter notice of contest. ’ ’'
*660In State ex rel. v. Spencer, 164 Mo. 48, this court used this language:
“In this case, however, the contestee appeared and filed an answer and cross charges. By so doing he waived the failure to give the notice required by section 7057. [State ex rel. v. Board of Equalization, 108 Mo. l. c. 243; State ex rel. v. Springer, 134 Mo. l. c. 227.] Consent cannot confer jurisdiction over the subject-matter. But the court had jurisdiction over the subject-matter by law. Consent can confer jurisdiction over the person, and a party sui juris, may waive even the issue of a summons and appear and answer. If he does so he is as completely in court as if he had been broug’ht in by notice of process. [Coleman v. Farrar, 112 Mo. 54; Fithian v. Monks, 43 Mo. 502; Thompson v. Railroad, 110 Mo. 147; Leonard v. Sparks, 117 Mo. 103.] If the contestee desired to avail himself of the want of notice, he should have seasonably interposed an objection on that ground by a limited appearance to dismiss. [Thompson v. Railroad, 110 Mo. 147.]”
And in State ex rel. v. McElhinney, 199 Mo. 67, the court said:
“But there is a further answer to this whole contention on the part of the relator. It is admitted that as contestee he appeared in the circuit court and filed his answer to the merits of the case, which answer is in part a cross-complaint against the contestant, and having done so, he waived the failure to give the notice required by section 7057. [State ex rel. Folk v. Spencer, 164 Mo. l. c. 54, 55.] It follows, therefore, that in so far as the objections of the relator and contestee to the jurisdiction of the circuit court are founded upon the insufficiency of the notice, it must be held that they are not well taken, and the circuit court had jurisdiction of the contest.”
In Quartier v. Dowiat, 219 Ill. 326, the court said:
“The defendant in an election contest who enters his appearance generally and demurs to the petition, waives any ground of objection he may have had to the sufficiency of the service together with the right to *661afterwards enter a personal appearance or to object to the jurisdiction of the court over his person.”
In State v. Moore, 54 S. C. 556, it was said:
“Parties who appear by counsel before the board of county canvassers on the protest of an election, to determine whether parts of townships shall be cut off from one county,to form part of another, cross-examine the witnesses, and participate" in the argument on the merits, thereby waive an objection that they were not formally served with notice.”
In Whitcomb v. Chase, 83 Neb. 360, the Nebraska statutes provide for the appeal of an election contest from the county court to the district court by taking certain steps. Objection was made by the contestee to the manner in which this appeal was taken, and the Supreme Court of that State said on this subject:
“The district court having been given appellate jurisdiction of the subject-matter of such contests, mistakes and irregularities in perfecting an appeal will not deprive it of such jurisdiction. Defects and irregularities in perfecting an appeal may be waived by the parties, and failure to make seasonable objection to the jurisdiction of the district court will constitute a waiver.”
In Dudley v. Superior Court, 110 Pac. 146, the contestee first demurred to the statement of the contestant. The California statute provides that a demurrer was a general appearance, and without a statute our courts hold to the same rule. After his demurrer was passed upon, the contestee objected to the service of notice, and it was held that his objection came too late. The court said:
“It further appears by the petition that upon the same date when the order was made calling the special session the petitioner, defendant in said contest, filed.a general demurrer to the statement of Jones, the contestant. Under section 1014 of the Code of Civil Procedure the effect of said demurrer was the entering of an appearance to the proceeding. The parties then being in court, and petitioner herein having entered *662an appearance to the proceeding, the neglect- of the clerk to issue the citation in proper form, or the service thereof, is of no materiality in determining the question of personal jurisdiction.”
In short, the cases just considered clearly hold that the law confers jurisdiction over the subject-matter of an election contest, and that the service of the notice of contest required by said Section 5924 by the proper officer, or the general entry of appearance of the contestee, gives the court jurisdiction over his person.
General Common Law. election contest" Jurisdiction. II. Counsel for respondent in a broad and general sense do not controvert the doctrine announced in paragraph one of this opinion, but insist that:. “Election contests are special statutory proceedings in which the courts of first instance .exercise a limited .jurisdiction and proceed according to a prescribed and exclusive procedure,” and, therefore, the conclusions reached in the previous paragraph are not sound. In our opinion that insistence is untenable. The circuit court is a court of general jurisdiction, given jurisdiction over matters of law and equity, and it is entirely immaterial how the right claimed or remedy prayed for - originated, so long as the jurisdiction of the court is not plainly limited by the law creating the right or conferring the remedy. Public policy is against placing special limitations upon the jurisdiction of courts of general, jurisdiction, and the policy of the courts is to frown upon such limitations unless it clearly appears. from the act conferring the jurisdiction. That the Legislature, by the statute under consideration, intended no such limitation is clearly shown by the authorities heretofore considered. We are, therefor, of the opinion that the case of State ex rel. Woodson v. Robinson, supra, in so far as it is in conflict with the views here expressed should be overruled and it is accordingly done.
*663Mandamus. *662III. It is. no longer an open question in this State that mandamus to compel the reinstate*663ment of this cause and its disposition by the circuit court in the orderly course of procedure is the proper remedy. The following authorities so hold: Castello v. St. Louis Circuit Court, 28 Mo. 259; State ex rel. Bayha v. Philips, 97 Mo. 331, 347; State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. Shackelford, 263 Mo. 52, 58; and State ex rel. v. Holtcamp, 266 Mo. 347, 372.
For the reasons stated the alternative writ heretofore issued is made permanent.
All concur except Graves, G. J., who dissents in a separate opinion in which Blair and Williams, JJ., concur.obiter in Woodson case