I dissent. There are respectable authorities, it is "true, which support the" argument contained in. the opinion, and the conclusion reached by a majority of the court. I cannot make myself believe that the conclusion is. correct.
*417The summons and the statute declare to the defendant that judgment will be entered against him if he fail to appear and answer within the time fixed by law. If he appear within the twenty-day limit and demur — that is, demur to the complaint for want of jurisdiction of the court over any subject-matter — ■ he simply, in effect, says: “Wait until the court decides whether or not I shall answer the complaint.” The court, because of pressure of other business, illness of the judge or his convenience, postpones mailing any decision upon the demurrer until, say, ten days after the expiration of the twenty-day period. Then it follows from the argument contained in the opinion, that the clerk must, under the statute, immediately upon the expiration of the twenty days enter the default of the defendant if asked by the plaintiff so to do; and if the court decide 'the demurrer adversely to the defendant, and he shall immediately file his answer, it may be, on motion, stricken from the files and judgment entered against the defendant for want of an answer. It will be said in opposition to this view that this filing of a demurrer is general appearance, and, to all intents and purposes, is an answer such as is contemplated in the Code when it says that the defendant shall appear and answer within twenty days. (Section 680, Code of Civil Procedure.) But the exact language of the Code as to summons and contents thereof is invoked in the opinion to support the view that a demurrer to the jurisdiction of the person involves a default and a judgment against the defendant, if he should have an adverse ruling after the expiration of twenty days after the service, upon his objection- — that is, his demurrer — to the jurisdiction of the court over his person. If the clerk, who knows what the files, records and proceedings are, may not enter a default of answer because a demurrer is pending as to jurisdiction of the subject-matter, why should he enter a default of appearance while a demurrer to the jurisdiction of the person is pending and under consideration by the court ? Each demurrer is allowed by law. Shall the clerk determine a question which the court is considering, and say there has been a service of summons, when the court is *418trying to find out whether there has been or not ? It is just as lawful to object — that is, demur — to the jurisdiction of the person, as it is to demur to the jurisdiction of the court over the subject-matter, and I cannot see any difference in logic in the two situations. If a man is to be punished for exercising his legal privilege in invoking the decision of the court upon the question: “Idas the court jurisdiction over me why shall he not be punished for invoking the court’s decision upon the question : “Has the court any jurisdiction over the subject-matter in this case ?” The position taken in the opinion, I think, is this: If the party sued enter his special appearance within the twenty days, and in good faith pray the decision of the court upon the important question whether he is obliged by the law to appear and defend, and he do this, and the court shall, on account of pressure of other matters pending, postpone the hearing on the defendant’s motion to quash, and do not decide until after the expiration of the twenty-day period, the plaintiff may have default entered by the clerk ministerially, and leave the defendant without remedy in what is, perhaps, an iniquitous suit. In other words, the judge, speaking for the court, practically says: “W&it awhile, and, it being my duty under the law to decide the question of jurisdiction, I will let you know whether you must appear and answer; and if, for my own convenience, I wait until after the expiration of the twenty days, default may be entered against you meantime by the clerk, and, if so, I shall not open it, and any answer you file I shall strike from the files.”
The Supreme Court of North Dakota impliedly animadverts upon forcing a party “to defend, or take the risk of being defeated on the question of jurisdiction after it was too late to be heard on the merits.” (Miner v. Francis & Southard, 3 N. D. at page 552, 58 N. W. 344.)
It has been suggested to me that the defendant, if he do not wish to put himself into such an unfortunate predicament, should, at the time he makes his special appearance, objecting -and demurring to the jurisdiction of the court over his person, ask for and obtain an extension of time within which to answer; *419in other words, should make two motions — one to quash for want of jurisdiction, and the other for an extension of time within which to answer. The latter motion would be a general appearance. and a waiver of the objection to the jurisdiction, in my opinion; so that this he may not do.
It is not necessary to cite authorities in support of the proposition that, “by appearance to the action for any other purpose than to take advantage óf the defective.execution or nonexecution of process, a defendant places himself precisely in the situation in which he would be if process were executed upon him, and he thereby waives all objection to the defective execution or nonexecution of process upon him.” (Layne v. Ohio River R. Co., 35 W. Va. at page 443, 14 S. E. 125.) The facts in the case cited are not like those in the case before us, but I hardly think that the proposition will be denied.
The conclusion to be drawn from the opinion is that, if the defendant be not absolutely certain that the court has not jurisdiction of his person through legal service of summons, he must appear or take the risk of a default without remedy. I am loath to believe that such a trap is laid by law for citizens. If so, it is time to change the law. If the defendant be absolutely certain that the court has not any jurisdiction, of course he need not appear. If he invoke the law, as settled by the courts giving him the privilege of special appearance, to find out surely if he must appear and answer, then he is likely to discover that he has been led by the law into his own undoing. The opinion settles it that it is extremely dangerous to civilly and lawfully ask the court to hear and determine a motion which under the settled law of this state one has a right to make, and which it is the duty of the court to determine before the case shall proceed. Why should a defendant be given by law an opportunity to invoke and the privilege of invoking the decision of the court as to whether he must appear and answer, if, pending the rendering of the decision, the clerk may enter a default, and the defendant be prevented from filing an answer immediately upon the ren*420dering of the decision of the court telling him that he is required to answer?
Rehearing denied January 16, 1905.I think that the court erred in striking the answers from the files, and in not opening up the default which the clerk entered while the court was considering the question whether or not he should answer at all. The answers were filed immediately after the court informed the defendant that he should answer; that is, after he overruled the motion to quash.
For the reasons hereinbefore stated, I respectfully dissent.