Opinion Concurring in Result
Landis, J.— I concur in the result of the opinion of Judge Jackson dissolving the temporary writ of mandate and prohibition, but do so for different reasons.
The record shows beyond dispute that on November 14, 1961, relator’s attorneys filed a petition with respondent court seeking an order transferring relator from Methodist Hospital in the City of Indianapolis to Larue D. Carter Memorial Hospital in said city. Said transfer was requested by relator for the reason that the Carter Hospital offered relator therapeutic and rehabilitative services which were not available at Methodist Hospital.
The filing of this petition with respondent court asking for certain affirmative relief from such court in my judgment amounted to a general appearance and precluded relator from subsequently raising in his complaint filed in respondent court on December *4520, 1961 (to set aside the judgment of 1957), and in his original action filed in this Court on January 22, 1962, the question of the jurisdiction of respondent court over the person of relator.
The following steps have been held to constitute a full general appearance: the filing of an answer on the merits, the filing of a demurrer, filing motion for change of venue, filing motion to publish depositions, filing motion to strike out a cross-complaint for want of service of process on plaintiff, filing cross-complaint demanding affirmative relief, appearing to a motion and arguing the merits, and the appearance in partition proceedings to object to a report of sale. See: Cases collected in 3 I. L. E., Appearance, §4, p. 6; and Lowe’s Revision of Works’ Indiana Practice, Vol. 1, §11.29, p. 321.
A general appearance is one made for the purpose of taking some action which recognizes the jurisdiction of the court over the defendant. It is either express or arises by implication from the defendant seeking, taking or agreeing to some step or proceeding in the cause recognizing the jurisdiction over him. On the other hand, in a special appearance the first step taken is to file a motion or plea contesting the jurisdiction of the court over the person of the defendant.
In the case before us while relator in his petition of November 14, asking respondent court to transfer him from one hospital to another for therapeutic reasons did recite that he intended thereafter to attempt to remove the guardian, no allegation was therein made suggesting respondent court was without jurisdiction in any respect whatever. By submitting himself to respondent court and asking such court to grant him affirmative relief, in my judgment relator has *46subjected himself to the rules of waiver and estoppel and must therefore be deemed precluded from raising thereafter in the court below or this Court the question of the respondent court’s jurisdiction over his person.
There is also a serious question of unreasonable delay and laches in this case. We have heretofore held that actions equitable in nature such as original actions of mandate and prohibition must be expeditiously filed. State ex rel. Hashfield v. Warrick Cir. Ct. (1961), 242 Ind. 318, 321, 178 N. E. 2d 734, 735; State ex rel. American Fletcher etc. v. Lake S. Ct. (1961), 242 Ind. 118, 127, 175 N. E. 2d 3, 8; State ex rel. City of Marion et al. v. Grant Cir. Ct. (1959), 239 Ind. 315, 320, 157 N. E. 2d 188, 191. See also: Harvey v. Rodger (1926), 84 Ind. App. 409, 421, 143 N. E. 8, 11.
The temporary writ of mandate and prohibition, should accordingly be dissolved, and the permanent writ denied.
Achor, C. J., concurs.Note. — Reported in 182 N. E. 2d 416, 422.