Wooten v. . Cunningham

Walker, J., after stating the case: "We agree with the respondent that this proceeding against him is somewhat irregular and not strictly according to the course and practice of the court. After perfecting the title in this proceeding for partition, an independent action should have been brought against the respondent to enforce the contract of purchase. But while this was the regular course to pursue, it seems to us that the «rights of the parties may just as well be adjudicated in this proceeding, in view of the respondent’s conduct in appearing generally and answering to the merits of the petition or motion, and then withdrawing his answer and demurring. His general appearance is still there. If he had appeared specially and moved to dismiss the petition, a different question might be presented, and, besides, as he has come into the case by his appearance, answer, and demurrer, and thereby waived the irregularity, we do not see why the court should not proceed to judgment, extending to him all the benefits and advantages he would have had if a separate action had been brought. He cannot be prejudiced by so treating this proceeding. If the court had first authorized the commissioners to accept private bids for the land in parcels, and respondent had made the same offer as he did at the sale, he would have been in the same position as a purchaser at a sale made under a judicial decree. He would have been a “preferred proposer” for the purchase of the land at the amount of the bid, and when the court had accepted his proposal ■ and confirmed the sale the bargain would have been struck. Joyner v. Futrell, 136 N. C., 301. *126 The court may authorize its commissioner to receive, and report to it, a private offer or bid for the land. This has too frequently been decided by this Court to be now an open question. Rowland v. Thompson, 73 N. C., 504; Sutton v. Schonwald, 86 N. C., 202; Barcello v. Hapgood, 118 N. C., 712; McAfee v. Green, 143 N. C., 411; Thompson v. Rospigliosi, 162 N. C., 145. By the appeal from the clerk the Superior Court at term acquired full jurisdiction of the cause, under Laws 1887, ch. 276; Revisal, sec. 614. See Thompson v. Rospigliosi, supra, and cases cited. This jurisdiction included the right of the court to accept a private bid through its commissioner. When the bid is accepted, whether it was made at public or private sale, the court has jurisdiction over the purchaser for the purpose of enforcing compliance with it. 24 Cyc., 52; In re Yates, 59 N. C., 212; Ex Parte Pettillo, 80 N. C., 50; Marsh v. Nimocks, 122 N. C., 478. The difference between the cases we have mentioned and this one is that there the usual procedure was adopted, by which the land was first ordered to be sold in a regular judicial proceeding, brought and prosecuted for that purpose, and the commissioner authorized to receive and report a private bid, while here the private sale was first made and the judicial proceeding for the sale of the land afterwards instituted. But respondent did not challenge the jurisdiction of the court in limine, but elected to appear generally and answer to the merits. The fact that he withdrew the answer and demurred does not change the nature of his appearance into a special one. Scott v. Life Assn., 137 N. C., 515; Currie v. Mining Co., 157 N. C., 209; Grant v. Grant, 159 N. C., 528; Dell School v. Peirce, 163 N. C., 424. We said in the latter case: “If the appearance is in effect general, the fact that the party styles it a special appearance will not change its real character. 3 Cyc., pp. 502, 503. The-question always is, what a party has done, and not what he intended to do. If the relief prayed affects the' merits or the motion involves the merits, and a motion to vacate a judgment is such a motion, then the appearance is in law a general one. Ibid., pp. 508, 509. The court will not hear a party upon a special appearance except for the purpose of moving to dismiss an action or to vacate a judgment for want of jurisdiction, and the authorities seem to hold that such a motion cannot be coupled with another based upon grounds which relate to the merits. An appearance for any other purpose than to question the jurisdiction of the court is general. 2 Enc. of Pl. and Pr., 632. The effort of the company evidently was to try the matter and obtain a judgment on the merits while standing just outside the threshold of the court. This it could not do. A party cannot be permitted to occupy so ambiguous a position. If a defendant invokes the judgment of the court in any manner upon any question, except that of the power of the court to hear and decide the controversy, his appearance is general. If *127 be appeals to tbe merits, no statement tbat be does not will avail bim, and if be makes a defense wbicli can only be sustained by an exercise of jurisdiction, tbe appearance is general, whether it is in terms limited to a special purpose or not. It all comes to this, tbat be cannot take tbe inconsistent position of denying tbe authority of tbe court to take cognizance of tbe cause by reason of some defect in tbe process, and at tbe same time seek judgment in bis favor upon tbe merits.” It is familiar learning tbat a general appearance or pleading to tbe merits waives defects in process and in-the jurisdiction of tbe person. Harris v. Bennett, 160 N. C., 339; Hassell v. D. R. R. Steamboat Co., 168 N. C., 296. Tbe Superior Court has general jurisdiction of tbe subject-matter of this proceeding, and if it did not have jurisdiction of tbe person, tbat might be waived, as we have shown, by general appearance or pleading to tbe merits. We affirm tbe judgment, not because we approve this method of enforcing performance of a bid at private sale, but for tbe reason tbat respondent submitted to tbe jurisdiction of tbe court in this particular case, and it will save costs, and accomplish tbe same purpose, if- we let tbe matter proceed rather than drive tbe petitioners to a separate action. Tbe judgment overruling tbe demurrer is affirmed, with directions to permit respondent to answer and to set up any defense which would be available to bim in an independent action, or in this, if it were strictly a proceeding to enforce compliance with a bid made at a judicial sale. It appears from tbe record, by implication, tbat this special proceeding was brought to perfect tbe title, as there are infants who are interested, and tbat it was contemplated when tbe land was sold. This but adds another reason for sustaining tbe petition to confirm tbe sale and for such relief as tbe case requires. No error.