I concur in the result reached in the foregoing opinion, but not with all that is said in it. I do not agree that under the laws of this state a person cannot take advantage of a defective service of papers without returning them. A motion to quash service of process, or to set aside service of papers, is often made and sustained *Page 170 without a return of the process or papers attempted to be served.
I agree that proper service of papers may be waived, but I do not agree that there is a waiver by the mere retention of the papers, when proper objection is made to the service.
I think the correct result has been reached in the opinion of Mr. Justice Anderson, because I think plaintiff did not pursue the correct method in objecting to the attempted service of the moving papers. Plaintiff attempted to raise the objection by motion to strike the moving papers from the files; this, I think was not proper. I agree that unauthorized papers may be stricken from the files, as stated in the majority opinion. But the papers here sought to be stricken were not unauthorized; they were properly filed. They need not be served at the same time of filing. (Sec. 9097, Rev. Codes 1921, and sec. 9774, Id.)
The motion, affidavit and demand for change of venue being properly filed, were not subject to being stricken from the files for want of proper service so long as there was not an abandonment of the motion for want of its diligent prosecution; no abandonment was shown here.
The court, I think, properly declined to strike the papers from the files. This was the only relief sought by plaintiff, and, since it was properly denied and since I agree with the rest of the majority opinion, I think the order should be affirmed.
Rehearing denied January 4, 1935, MR. JUSTICE ANGSTMAN dissenting. *Page 171