The defendant is a nonresident of the’ state, and the summons herein was served upon him while he was temporarily in the state, in actual and necessary attendance upon court in an action to which he was a party, and hence exempt from the service of process. Upon motion the service was set aside and an order made dismissing the action with motion costs. From this order the plaintiff appeals on the' ground that, although the defendant stated that he appeared specially, his motion was not merely to vacate the service, but to dismiss the action with costs.
It is undoubtedly true that in some jurisdictions such a motion constitutes a general appearance, but this court, in Kingsley v. G. N. R. Co. 91 Wis. 380, 64 N. W. 1036, held that the identical motion made here did not constitute a general appearance. Following that case, the order appealed from must be affirmed.
By the Court. — It is so ordered.