¶1 concurring:
¶2 I agree with the decision of the Court and the result reached in all respects except as to that part of the opinion holding that Section 12, Chapter 160, Acts of the Legislature, Regular Session, 1947, is mandatory in requiring the service of process on former owners and other named defendants. Such proposition is embodied in the latter portion of point 4, and in point 7, of the syllabus herein. As to the same, as well as to those portions of the opinion wherein that proposition is discussed, I disagree.
¶3 In the first place I do not believe that either point 7 or point 4 of the syllabus can be treated as questions for decision in this case. It is to be pointed out that only two of the defendants herein contest this proceeding as instituted by the State. As the opinion of the Court states, each of those two defendants “made a general appearance”, filing their separate demurrers. It is from the action of the trial court on such demurrers that this appeal was granted.
¶4*514 It is too well settled to require citation of authorities that a general appearance waives, and thereby cures, all defects in process, as well as all defects in the service thereof. Such being the case, questions relating to the validity of the process herein and the validity of the service thereof, do not and can not arise on this appeal. Accordingly, it is my opinion that those portions of the opinion of the Court wherein Section 12, idem, is discussed, are essentially obiter, and should not be included in points of the syllabus herein.
¶5 But, treating the question of the validity of either the process or the service thereof as a point of decision herein, I disagree with the opinion of the Court thereon. I think that under the guise of interpreting and construing Section 12, idem, this Court has attributed to the Legislature an intent which, by the farthest stretch of the imagination, can not be read therein. On the other hand, I think that the Legislature has clearly and unequivocally stated its intention with reference to the requirement of process, and the service thereof, by stating “… that failure to name any such person as a defendant, or failure to serve the summons on any named defendant, shall in no wise affect the validity of any of the proceedings in the suit … Section 12, idem.
¶6 Without further belaboring the point, my position thereon is fully supported by the action of the Legislature, subsequent to the decision of this Court herein, in the enactment of Chapter 134, Acts of the Legislature, Regular Session, 1949. That Act, which was introduced on March 9, 1949, as Senate Bill No. 276, was passed by the Senate March 9, 1949, and by the House of Delegates on March 11, 1949. The Act, which is effective from passage, was approved and signed by the Governor on March 18, 1949, and, in my opinion, is now the law of this State. In amending and reenacting Section 12, idem, said Act eliminates the form of summons, the provision relating to service thereof, and thus removes the basis for that part *515 of the opinion herein with which I disagree. The Act provides, among other things, as follows:
“… in view of the further fact that all parties known and unknown who may claim aii interest in any of the lands included in the suit are given notice thereof by the order of publication provided for above; therefore, the Legislature deems it both expedient and necessary to provide that failure to name any such person as a defendant shall in no wise affect the validity of any of the proceedings in the suit for the sale of the state’s title to such land; and in view of the fact that the supreme court of appeals in a decision just rendered has held that there is no constitutional requirement that the former owner or any other interested person be personally served with process in a suit for the sale for the benefit of the school fund of lands that are and must be the absolute property of the state; and in view of the further fact that in its last previous enactment of this section the Legislature had no intention of requiring that personal service of process on named defendants in such a suit should be a mandatory condition precedent to the validity of any step or proceeding in such suit, but on the contrary expressly stated that failure to serve the summons on any named defendant should in no wise affect the validity thereof; now therefore, the Legislature also deems it both expedient and necessary to provide that the failure to obtain such personal service on any named defendant in any suit instituted under the provisions of this article prior to the effeétive date hereof shall in no way affect the validity of any step or proceeding in any such suit or the validity of the title acquired by the purchaser of land sold under any decree made or to be made in any such suit.”
¶7 I regard the action of the Legislature in this respect as succinct and apropos. Accordingly, this concurrence is written.
¶8 I am authorized to say that Judge Riley joins in this concurrence.