(dissenting):
I do not regard the result attained in this case as consistent with legal principles and orderly procedure. The true principles is declared in Crowley v. Fisher, 57 W. Va. 312, Chapman v. Maitland, 22 W. Va. 345, and Price v. Pinnell, 4 W. Va. 296. The general policy of the law is to save a litigant the benefit of all proper exceptions taken in due time. There can be no such thing as compulsory waiver. Voluntariness is the essential, dominant element of a waiver. The exception here presented, starting with the unfortunate suggestion in Wright v. Railway Co., 50 W. Va. 653, is the only instance of violation of the principle, found in the jurisprudence of this state, so far as I know.
Nor do I think the error in a judgment, entered over the protest of a defendant on insufficient process or a. defective return, can be cured by an amendment, for this works a compulsory waiver. Such 'was the reasoning of Judge Stannard in Wynn v. Wyatt’s Admr., 11 Leigh 585, in the following concise and forceful terms: “The argument presents the singular dilemma, that a party cannot free himself from the present or past effect of erroneous process, without forfeiting his right to exemption from judgment until proper process shall be sued and duly served upon him. It would subject him to judgment without any future regular process, as the consequence of his objecting the nullity and irregularity of past process.” President Tucker approved this reasoning. To the same effect see Crowley Y. Fisher, cited; Chapman v. Maitland, 22 W. Va. 329; Price v. Pinnell, 4 W. Va. 296; Hickman v. Larkey, 6 Grat. 210. The apparent departure from the rule in Gauley Land Assn. v. Spies may be justified by disclosure of lack of any defense. An insufficient answer having been -rejected, nothing further was offered. The decisions of this Court, cited as authority for cure of such defect by amendment, were all in cases of default judgments and decrees. They do not justify the application of the rule under the circumstances of this case. Acting upon the suggestion in Wright v. Railway Co., the defendant rested his case upon the motion to quash the return, seeing submission of his defense thereafter would be treated as a waiver of the defect. He has not been allowed to make *327bis defense without giving up Ms legal right to a sufficient return. The statute gives that right. Denial thereof by a compulsory waiver — mere coercion — is judicial legislation pure and simple.
For these reasons, I dissent.