Defendant challenges the jurisdiction of the trial court because he was not served with process. We see no merit in this argument.
The death blow to defendant’s argument lies in the fact that defendant’s counsel participated in a conference on 23 February 1979 in Judge Huffman’s office, pertaining to uio custody of defendant’s minor child, and did not аt this time maxe any objection as to the lack of jurisdiction over the defendant. This activity constitutes a general appearance and confers jurisdiction оver defendant’s person even though no service was made upon either the dеfendant or his counsel of record. G.S. 1-75.7 (1979 Cum. Supp.);
Swensen v. Thibaut,
An excellent statement of the rule tо be applied is found in an old opinion by the Supreme Court of West Virginia:
“ ‘By appearance to the action in any case, for any other purpose than to take advantage of the defective execution, of process, a defendant places himself precisely in the situation in which he would be if process were executed upon him, and he thereby waives all objection to the defective execution or nonexecution of process upon him.’ (Citations omitted.) This is a declaration for a general principle, to be read in light of the facts аnd circumstances under which it is applied, in seeking its true meaning. Some attention must alsо be paid to its terms. It must be an appearance for a purpose in the cause, not one merely collаteral to it ... . No instance can be found in which a party has been held to have impliedly bound himself to submission, without having asked or received some relief in the cause or participated in some step taken therein. Mere presence in the courtroom when the case is called, or exаmination of the papers in it filed in the clerk’s office, is not enough. Nor could a conversation with plaintiff’s counsel or the judge of the court, about the case, be regarded as an appearance .... The test is whether the defendant beсame an actor in the cause. . . .” (Emphasis supplied.)
Fulton v. Ramsey,
Admittedly, the act of participation in a conference with the judge and opposing party presents a close case for invoking personal jurisdiction. Nonetheless, the “participation in some step taken” — in this case the action of the court to preserve jurisdiction over the subject matter of thе litigation — is sufficiently directed toward “a purpose in the cause” to confer рersonal jurisdiction over the defendant.
Having found that defendant has made a general appearance through his attorney, we note that, “after a defendant has submit
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ted himself to the jurisdiction of the court by conduct constituting a general appearance, he may not assert the defense that the court has no jurisdiction over his person either by motion or answer under Rule 12(b).”
Simms v. Mason Stores, Inc.,
We do nоte, however, that the participation by defendant’s counsel in the contempt hearing would not invoke personal jurisdiction over the defendant since a contempt proceeding is a collateral matter that does not directly bear upon the subject matter of the controversy.
Since the court had jurisdiction over the defendant, he must comply with the order preventing him from removing the child from the jurisdiction of the court. It only follows that the defendant may not now assert that the court has no jurisdiction over the subject matter when the defendant has removed the subject matter from the jurisdiction in violation of a court order.
Affirmed.