¶1dissenting:
¶2I respectfully dissent.
¶3The law concerning the distinction between special and general appearances is well settled in Illinois. In 1957, the Illinois Supreme Court explained: “[A]ny action taken by the litigant which recognizes the case as in court will amount to a general appearance unless such action was for the sole purpose of objecting to the jurisdiction.” (Lord v. Hubert (1957), 12 Ill. 2d 83, 87, 145 N.E.2d 77, 80.) In fact, the supreme court had previously held that a stipulation for a continuance amounts to a genéral appearance. People v. Estep (1955), 6 Ill. 2d 127, 128, 126 N.E.2d 637, 638.
¶4Both the Second and Fourth District Appellate Courts have held that a jury demand constitutes a general appearance. (Difanis v. Martin-Trigona (1979), 73 Ill. App. 3d 352, 355, 391 N.E.2d 1067, 1069; McGuire v. Outdoor Life Publishing Co. (1941), 311 Ill. App. 267, 279, 35 N.E.2d 816, 822.) In Difanis, the court held that although the mere filing of a removal petition does not convert a special appearance into a general appearance, coupling the removal petition with a jury demand does. In McGuire, the court held that whether service upon the corporation was proper is irrelevant because the corporation’s jury demand and motion to quash service constituted a general appearance. Although not bound by these cases, I find their logic persuasive and, contrary to the majority, urge that we follow Difanis.
¶5As its name implies, a special and limited appearance is limited in nature. The sole purpose of a limited appearance is to object to the jurisdiction of the court over the person of the defendant. Any act which recognizes the cause as being in court will waive that special nature. (Lord v. Hubert, 12 Ill. 2d 83, 145 N.E.2d 77.) It is illogical to ask a court to exercise its jurisdiction and simultaneously deny its existence. (McKnelly v. McKnelly (1976), 38 Ill. App. 3d 637, 639, 348 N.E.2d 500, 502.) That is precisely what defendant seeks to do. By demanding a jury, defendant recognized the action as being in court. Defendant, in essence, invoked the jurisdiction of the circuit court and simultaneously denied its existence. I would therefore hold that in demanding a jury, defendant waived its special appearance.
¶6Defendant argues, and the majority agrees, that characterizing a jury demand as a waiver of a special appearance will trap defendant by a technicality. Defendant, here, attempted to employ a very strict and narrow procedural device, the special and limited appearance, to challenge the court’s jurisdiction. I see no problem with the special and limited appearance mechanism as well as its narrow scope, and I do not believe a result contrary to the majority would trap defendant by a technicality.
¶7Defendant points out that plaintiff did not question the nature of defendant’s filing until over D/2 years after the initial filing. The operative date here, however, was when defendant filed its jury demand. That is the time defendant invoked the jurisdiction of the court. Defendant’s waiver of the jurisdiction issue is no less valid because it was not called to the attention of the circuit court until D/2 years later.
¶8Defendant further argues that because a jury demand did not defeat a special appearance under the prior Code, it should not do so now. A plain reading of the Joint Committee Comments shows a clear intent to change the law.
“Formerly, a party filing a special appearance was also required to file a jury demand in order to preserve his right to a jury. …
… [The Code] now permits the defendant to file his jury demand at the time his answer is filed.” (Ill. Ann. Stat., ch. 110, par. 2 — 1105, Joint Committee Comments (1955), at 504 (Smith-Hurd 1983).)
¶9Defendant could have properly delayed its jury demand until it filed an answer.
¶10Finally, defendant argues that recognizing the special appearance with a jury demand as a general appearance will deprive defendant of its constitutional rights under the fifth and fourteenth amendments to the United States Constitution. (U.S. Const., amends. V, XIV.) Plaintiff responds that defendant knowingly and voluntarily submitted itself to the jurisdiction of the circuit court. Only a knowing, intentional, and unequivocal act can waive a party’s due process rights. (D.H. Overmyer Co. v. Frick Co. (1972), 405 U.S. 174, 185-86, 31 L. Ed. 2d 124, 133-34, 92 S. Ct. 775, 782.) A jury demand is such a knowing, intentional, and unequivocal act which recognizes the jurisdiction of the circuit court.
¶11The majority’s strongest argument is that to uphold the order of the circuit court promotes form over substance. I completely agree that form should not be promoted over substance; the demand by a party for a jury trial is not mere form but is substance. It invokes the right of a litigant to be heard by a jury when he has his day in court and, as a practical matter, results in a different course of litigation than that of a nonjury trial. As noted above, a party requests the court to act on its behalf in securing its right of jury trial.
¶12The public policy of Illinois is expansive regarding the exercise of jurisdiction. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209 (the long arm statute); Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155; Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761.) It is consistent with this policy, and not improper or constitutionally impermissible, to require strict compliance with clear and established procedures in order to contest jurisdiction. In this case defendant did not so comply.
¶13For these reasons, I would affirm the circuit court of St. Clair County and remand this cause for further proceedings.