Williams v. Williams , 46 N.C. App. 787 ( 1980 )

266 S.E.2d 25 (1980)

Judy Stephenson WILLIAMS
v.
Michael John WILLIAMS.

No. 7920DC983.

Court of Appeals of North Carolina.

May 20, 1980.

Seawell, Robbins, May & Webb by P. Wayne Robbins, Carthage, for plaintiff-appellee.

Thigpen & Evans by Frank C. Thigpen, Southern Pines, for defendant-appellant.

CLARK, Judge.

Defendant challenges the jurisdiction of the trial court because he was not served with process. We see no merit in this argument.

The death blow to defendant's argument lies in the fact that defendant's counsel participated in a conference on 23 February 1979 in Judge Huffman's office, pertaining to the custody of defendant's minor child, and did not at this time make any objection as to the lack of jurisdiction over the defendant. This activity constitutes a general appearance and confers jurisdiction over defendant's person even though no service was made upon either the defendant or his counsel of record. G.S. 1-75.7 (1979 Cum.Supp.); Swensen v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279 (1978), appeal dismissed, 296 N.C. 740, 254 S.E.2d 181 (1979); Alexiou v. O.R.I.P. Ltd., 36 N.C.App. 246, 243 S.E.2d 412, cert. denied, 295 N.C. 465, 246 S.E.2d 215 (1978).

An excellent statement of the rule to be applied is found in an old opinion by the Supreme Court of West Virginia:

"``By appearance to the action in any case, for any other purpose than to take advantage of the defective execution, or nonexecution, of process, a defendant places himself precisely in the situation in which he would be if process were executed upon him, and he thereby waives all objection to the defective execution or nonexecution of process upon him.' (Citations omitted) This is a declaration for a general principle, to be read in light of the facts and circumstances under which it is applied, in seeking its true meaning. Some attention must also be paid to its terms. It must be an appearance for a purpose in the cause, not one merely collateral to it. . . . No instance can be found in which a party has been held to have impliedly bound himself to submission, without having asked or received some relief in the cause or participated in some step taken therein. Mere presence in the courtroom when the case is called, or examination of the papers in it filed in the clerk's office, is not enough. Nor could a conversation with plaintiff's counsel or the judge of the court, about the case, be regarded as an appearance. . . The test, . . . is whether the defendant became an actor in the cause.. . . " (Emphasis supplied).

Fulton v. Ramsey, 67 W.Va. 321, 68 S.E. 381 (1910). This statement is consistent with North Carolina case law on the subject of appearances. We note that it has long been the rule in this jurisdiction that a general appearance by a party's attorney will dispense with process and service. See, e. g., Etheridge v. Woodley, 83 N.C. 11 (1880).

Admittedly, the act of participation in a conference with the judge and opposing party presents a close case for invoking personal jurisdiction. Nonetheless, the "participation in some step taken"—in this case the action of the court to preserve jurisdiction over the subject matter of the litigation—is sufficiently directed toward "a purpose in the cause" to confer personal jurisdiction over the defendant.

Having found that defendant has made a general appearance through his attorney, we note that, "after a defendant has submitted himself to the jurisdiction of the court by conduct constituting a general appearance, he may not assert the defense that the court has no jurisdiction over his person either by motion or answer under Rule 12(b)." Simms v. Mason Stores, Inc., 285 N.C. 145, 157, 203 S.E.2d 769, 777 (1974). It is significant that in Simms, supra, the court cited with approval the case of Wyrough & Loser, Inc. v. Pelmor Laboratories, Inc., 376 F.2d 543 (3d Cir. 1967) in which the federal court held that participation by the defendant in a hearing on a preliminary injunction was sufficient for the defendant to waive his defense of lack of personal jurisdiction. We can see little difference between Wyrough and the instant case, particularly since the preliminary matter before the court below pertained to an order enjoining defendant from taking the minor child out of the jurisdiction. In both cases the court obtained jurisdiction by virtue of defendant's participation in a vital proceeding.

We do note, however, that the participation by defendant's counsel in the contempt hearing would not invoke personal jurisdiction over the defendant since a contempt proceeding is a collateral matter that does not directly bear upon the subject matter of the controversy.

Since the court had jurisdiction over the defendant, he must comply with the order preventing him from removing the child from the jurisdiction of the court. It only follows that the defendant may not now assert that the court has no jurisdiction over the subject matter when the defendant has removed the subject matter from the jurisdiction in violation of a court order.

Affirmed.

ROBERT M. MARTIN and ERWIN, JJ., concur.