(concurring in the judgment).
I concur in the majority opinion’s conclusion that no error occurred in the trial court’s determination that the Arizona court had jurisdiction over appellants. Plaintiffs supported their motion for summary judgment with an affidavit containing facts which, according to the lower court, established jurisdiction in Arizona. Defendants submitted no countervailing affidavit to create an issue of material fact. I therefore agree that the trial court properly disposed of the issue on summary judgment. I do, however, disagree with the application of the ruling in Fullenwider Co. v. Patterson, Utah, 611 P.2d 387 (1980).
The distinction between general and special appearances has been abolished by Rule 12(b), Utah Rules of Civil Procedure. Brown & Associates, Inc. v. Carnes Corp., Utah, 547 P,2d 206 (1976). A party need no longer appear “specially” to attack the court’s jurisdiction, and, conversely, a general appearance does not waive the objection of lack of jurisdiction over the person. Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241 (9th Cir. 1967); Emerson v. National Cylinder Gas Co., 131 F.Supp. 299 (D.Mass.1955); Orange Theatre Corporation v. Rayherstz Amusement Corp., 139 F.2d 871 (3rd Cir. 1944). A defendant may, however, waive objection to jurisdiction over his person by failing to raise the defense in a timely fashion. Orange Theatre Corporation v. Rayherstz Amusement Corp., supra.
A defendant may challenge jurisdiction over his person in his answer and also assert defenses going to the merits without losing the jurisdictional claim. Alternatively, a defendant may raise his defenses in a motion prior to his answer. However, if a party makes a Rule 12(b) motion and omits from it any defense which may be raised under that rule, he may not raise those defenses at a later time.
The critical action in the Arizona case was the motion to set aside a default judgment. The record does not reveal whether the jurisdictional issue was raised by the motion or, if so, whether the court ruled on it. Assuming, however, as we must, that the issue was not ruled on, defendants’ motion did not constitute a waiver of the defense of lack of jurisdiction over his person. In Fullenwider the appellant expressly raised the jurisdictional question in his motion to set aside the default judgment and that issue was adjudicated, but the instant record does not reveal as much. I therefore would not extend the Fullenwider rationale to the instant case.
MAUGHAN, C. J., does not participate herein. GOULD, District Judge, sat. CROCKETT, J., heard the arguments, but retired before the opinion was filed.