&198tna Ins. Co. v. Earnest

Conceding, without deciding, that the sheriff's return indorsed on the summons was not sufficient to show a valid service on the defendant, Ætna Insurance Company, even under section 9421 of the Code (see Farmers' State Bank v. Inman, 208 Ala. 281, 283, 94 So. 105, and Independent Order, etc., v. Walker, 17 Ala. App. 66, 81 So. 844), we are of the opinion that the defect was waived by the defendant, when it appeared generally and filed a motion to set aside the judgment and grant defendant a new trial on the grounds of surprise, mistake, and fraud.

It will be observed that the motion admitted that:

"A copy of the summons and complaint in this cause was served on an agent of defendant."

It then recites that negotiations for a settlement were entered into between the parties, and while these negotiations were under way, and without notifying defendant that they were considered at an end, plaintiff, on February 1, 1926, took a judgment by default against defendant; and that:

"On account of the above-described acts and conduct on the part of the plaintiff, the defendant was prevented by surprise, accident, mistake, or fraud, without fault on its part, from making its defense to this cause of action."

In thus appearing and attempting to set aside the judgment because it had been wrongfully deprived of the opportunity to make its defense, and in asking for a new trial, the defendant recognized the validity of the judgment and of the service of summons, and assumed a position wholly inconsistent with its now asserted right to vacate the judgment for want of legal execution of the summons.

The subject is discussed quite fully, with a review of the authorities, in Security Loan Trust Co. v. Boston, etc., Co.,126 Cal. 418, 58 P. 941, 59 P. 296, and Belkman v. Charlton,25 Or. 41, 34 P. 758.

The general rule is thus stated in 4 Corp. Jur. 1364, § 64:

"Where a judgment has been rendered by the court without jurisdiction of the person, a general appearance after such judgment waives all objection to the jurisdiction of the court over the person. Thus a general appearance by defendant after final judgment waives any and all defects and irregularities in the service of process and return, just as fully as it does where such appearance is entered before final judgment."

And the same text (1365, § 65) cites many cases to the proposition that:

"As to the immediate parties to the action, a general appearance validates a judgment that was theretofore absolutely void for want of jurisdiction."

There are a few cases to the contrary, as in Bennett v. Supreme Tent, 40 Wash. 431, 82 P. 744, 2 L.R.A. (N.S.) 389, but we prefer to follow the great weight of authority, which is based, we think, on sound principles.

The judgment appealed from will therefore be affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.