Plaintiff brought his bill in equity as Executor setting forth that his testator in his lifetime executed a deed of Maine real estate to defendant, which deed, the plaintiff averred, although duly recorded within a few days, was never delivered to the defendant by the decedent in his lifetime. The prayer of the bill was for injunction to restrain the defendant from disposing of the property. Service of notice in the usual form was made, so the parties stipulate, on the defendant in South Carolina, he being resident thereof. Thereafter counsel for defendant appeared specially and subsequently filed motion to dismiss for want of jurisdiction as to the defendant. This motion was denied and exception taken. The residuary legatee was permitted without objection to intervene as party plaintiff. Later defendant renewed his motion stating additional grounds all related to the lack of jurisdiction. This motion likewise was denied and exception reserved. Defendant has never entered a general appearance nor has he ever abandoned his protest with reference to jurisdiction. He has never pleaded to *202 the merits nor has any hearing on the merits been had. The bill of exceptions informs us that the chief ground of the denial of defendant’s motions was that the appearance and pleading through counsel, either specially or generally, to attack jurisdiction automatically gives the court jurisdiction of the person.
We must first consider whether the matter is prematurely before us. Ordinarily exceptions will not be entertained in the Law Court before a case in equity comes up for a final hearing. R. S., 1954, Chap. 107, Sec. 26; Whitehouse Equity Practice, Sec. 617, Page 647;
Stevens
v.
Shaw,
It is not contended here that the service which was made upon the defendant while resident in South Carolina conferred upon the Maine Court any jurisdiction over the person of the defendant such as was requisite to the granting of the injunctive relief sought. See
Pennoyer
v.
Neff,
It is true that in actions at law, the common law required that pleas to the jurisdiction which were in the nature of pleas in abatement had to be oifered by the defendant in
*203
person rather than by attorney. Even in actions at law, however, if the jurisdictional failure was evident upon the face of the record, advantage of the failure could properly be taken by motion to dismiss filed by an attorney under special appearance.
Louisville & N. R. Co.
v.
Industrial Board,
The approved practice in equity is for defendant’s counsel to appear specially and file a motion in writing to dismiss for want of jurisdiction over the person. “In either case, a motion seems to be the only safe form of pleading to employ in making a special appearance, and where the facts showing the failure of jurisdiction do not appear on the record, they should be set out in the motion and verified by affidavit.” Whitehouse Equity Practice (State and Federal), Vol. 1, Sec. 185, Page 354. In Flint v. Comly, supra, at page 255, our court said: “If these non-resident defendants had desired to object to the jurisdiction of the court, they should have entered a special or conditional appearance. Such an appearance, made for the purpose of urging jurisdictional objections, is clearly recognized by all courts and works upon practice." (Emphasis supplied.) And at page 256, “The rule is, that when a defendant appears solely for the purpose of objecting to the jurisdiction of the court over his person, such motion is not a voluntary appearance of defendant which is equivalent to service.” The practice was followed and approved in the equity case of Devine v. Tierney, supra. So here the defendant cannot be deemed to have voluntarily submitted to the jurisdiction of the Maine Court by appearing specially by counsel and pressing a motion to dismiss for lack of jurisdiction of the person.
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The plaintiff contends that defendant unreasonably delayed filing his motion
to
dismiss and should be treated as having waived his right to file. He calls attention to the fact that such delay may be fatal in actions of law because of the application of Rule 5 of the Revised Rules of the Supreme Judicial and Superior Courts.
Snell
v.
Snell,
We think the rights of the defendant crystallized and were preserved by exception as matters stood when the court below first refused to dismiss the action for want of jurisdiction. The subsequent conduct and participation by defendant’s counsel displayed no intention to waive the jurisdictional defect, but on the contrary the lack of jurisdiction was vigorously and consistently asserted at every stage of the proceedings. It has been said that once the point is saved by exception, and at least in the absence of any subsequent manifest intention to waive the jurisdictional issue, even a later participation upon the merits will not deprive a party of the benefit of his position upon the jurisdictional issue.
Citizens’ Savings and Trust Co.
v.
Illinois Central Railroad,
The only question remaining is whether or not the bill should be dismissed only as to the defendant but retained for action upon the res. By a series of amendments the original plaintiff here has sought to convert this equitable action from one seeking
in personam
relief against the defendant to an action
in rem
seeking to remove an alleged cloud on title. In an appropriate case the court will sometimes dismiss the bill as to the defendant but retain it for hearing as an
in rem
proceeding.
DuPuy
v.
Standard Mineral Co.,
As has been noted, the amendments already made and those which might be further required to convert this action into one for the removal of an alleged cloud have the effect of changing completely the equitable cause of action. It seems doubtful if the justice below would have allowed the amendments, had he not considered that the defendant had already submitted to the jurisdiction. Whitehouse Equity Practice, Sec. 411, Page 440 states: “To strike out the entire substance and prayer of a bill and insert a new case by way of amendment, leaves the record unnecessarily encumbered with the original proceedings, increases expense and complicates the suit. It is far better to require the complainant to begin anew.” Although the right of amendment is broad in equity and ordinarily rests within the discretion of the presiding justice, we deem this an appropriate situation in which to follow the suggestion that amendments which entirely change the cause of action in equity are not to be encouraged.
Exceptions sustained. Bill dismissed with costs to defendant hut without prejudice to plaintiffs.