(dissenting).
The following is the substance • of an opinion prepared by me for consideration of my colleagues, which did not meet with their approval. I adhere to my views as therein expressed.
I'would rule that the vacating of the •judgment by the trial court was error. There can be no doubt that the court had jurisdiction over the person of the tenant, as he voluntarily appeared on the ’return day and made no objection to the court’s jurisdiction over him. It is well settled that failure to raise such a defense, either by motion or by answer, constitutes a waiver of that particular defense.1 Although an answer to the complaint is not required in.the Landlord and Tenant Court,2 the defense of lack of jurisdiction over, the, person may be made by , motion.3 The tenant’s failure in the present case to make such a motion at the proper time thus waived any objection he may have had to the manner in which he was served .with process.
Nor can there be any contention that the:court lacked jurisdiction over the'subject matter of this suit. Thus, the only question remaining is whether the trial judge had the discretionary power to permit the landlord to amend her complaint. In so far as notice is concerned, a reading
*579of the complaint advised the tenant in no uncertain terms that the landlord wanted to regain possession of her property because he had failed to pay the rent for the month of December 1952, and the amount set forth in the complaint as due was $75. While it is true that the action below was basically one for possession, the enacting statute was amended' to permit- the landlord to join with his claim for possession a claim for unpaid rent,4 and such’ a claim may he made by amending the complaint.5 One of the functions and duties of the court is to exercise its powers’ so as to avoid future litigation. Inasmuch as the tenant admitted in open court that he owed the rent,’ I would hold that' there was no abuse of the court’s-discretion in allowing the complaint to be amended. Therefore the cáse should be reversed 'with instructions to set aside the order vacating the judgment below.
. Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 139 F.2d 871, certiorari denied Orange Theatre Corp. v. Brandt, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573, construing Rule 12(b) F.R.C.P., 28 U.S.C.A., which is basically the same as Municipal Court Rule 12(b), which applies to the Landlord and Tenant Branch under Landlord and Tenant Rule 11.
. Landlord and Tenant Rule 4(b).
. Landlord and Tenant Rule 4(d).
. Code 1951, 45-911.
. Block v. Gates, D.C.Mun.Ápp., 68 A.2d 215.