¶1 (specially concurring).
¶2 I think the suggestion of error should be overruled; but I think that some of the views announced in the former opinion should be withdrawn.
¶3 In my opinion, it would be well for the state courts to follow the Federal practice in treating an appearance for making a motion to remove the cause to the Federal court as an appearance for the purpose of a proceeding-in rem., and not for the purpose of a general judgment.
¶4 It seems to me highly desirable that the state and Federal practice on this point should be uniform. The purpose of publication of an attachment, and other proceedings in rem, is to advise a nonresident of the pend-ency of the proceeding which may affect his rights, and that he may appear and defend the action if he so desires. The irregular and illegal service had the effect of bringing the A1 Parker Security Company into court; and it appeared and moved to transfer to the Federal court.
¶5*316 At first tlie Federal court entertained jurisdiction, and was proceeding, in accordance with. Federal practice,, to deal with the proceeding* in rem and to dispose of the res; but it finally decided that it did not have jurisdiction, and remanded it to the state court. Consequently, all steps taken in the Federal court were vacated and made void by the order to remand.
¶6 I think that at the common law a. party could appear either specially or generally, and the statute making a motion to quash a general appearance has the effect of changing the common law only to the extent therein specified. In 2 Ency. PI. & El*, p. 620, under the head of “Special Appearance,” it is said:
“A special appearance is one made for the purpose of urging jurisdictional objections.
“But an objection to jurisdiction over the person, to be availing, must not be raised in connection with denial of jurisdiction over the subject-matter. An appearance to deny the jurisdiction of the court over the subject-matter is, according to the weight of authority, a general appearance.
“It is a familiar rule, that a general appearance waives any defect in the process and confers jurisdiction of the person. To avoid the effect of this rule it is the common practice, when it is desired to take advantage of any defects in process and to deny jurisdiction over the person, to appear specialty for that purpose only. A special appearance is only proper when a party seeks to deny the jurisdiction of the court over his person.”
¶7 It seems to me that the effect of the rule adopted in the court’s opinion on the suggestion of error is to add expense, and delay the proceedings. Unquestionably, process may now be had according; to the statute, and the defendant brought into court, and the same effect would be had, without the delay and expense incident to this proceeding, by following the Federal rule.