Dickson v. Fogarty Bros. Transfer, Inc.

WiNBORNE, J.

This is the question: Was the appearance made by defendant Fogarty Brothers Transfer, Inc., a special appearance, as it purported to be, or was it a general appearance ? This Court holds that it exceeds the purposes for which a special appearance may be had, and was, in law, a general appearance. And a general appearance waives any defects in the jurisdiction' of the court for want of service of summons. The case of In re Blalock, 233 N.C. 493, 64 S.E. 2d 848, 25 A.L.R. 2d 818, in so far as it relates to the subjects of special and general appearances, is decisive of the question here. What is so recently said there is controlling here, and need not be repeated.

Decisions cited and relied upon by appellee have been duly considered, and are found to be inapplicable to the situation in hand.

Hence the judgment rendered, and from which this appeal is taken, is erroneous and will be, and it is hereby set aside, and the cause is remanded for further proceedings as to right and justice appertain, and as the law provides. Defendant Fogarty Brothers Transfer, Inc., will be allowed thirty days from the date this opinion is certified to Superior Court in which to demur or answer. G.S. 1-125.

Error and remanded.