Present: All the Justices 

KIMBERLEY M. GILPIN 

 OPINION BY 

v. Record No. 981801 JUSTICE LAWRENCE L. KOONTZ, JR. 

April 16, 1999 

KEVIN CHARLES JOYCE 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

 The dispositive issue in this appeal is whether a defendant 

who makes a general appearance without having been served with 

process is entitled to assert the bar against judgment provided 

by our Rule 3:3. 

 The parties have stipulated to the facts and proceedings in 

the trial court. On June 20, 1996, Kimberley M. Gilpin filed a 

motion for judgment seeking damages from Leslie Mae Dailey and 

Kevin Charles Joyce for injuries Gilpin alleged she had received 

in an automobile accident on June 23, 1994. Gilpin did not 

request service of process on either defendant. 

 On October 30, 1997, Joyce, by counsel, filed a “motion to 

dismiss” citing that part of Rule 3:3 which provides: 

No judgment shall be entered against a defendant 

who was served with process more than one year after 

the commencement of the action against him unless the 

court finds as a fact that the plaintiff exercised due 

diligence to have timely service on him.[1] 

 

1

A similar provision appears in Rule 2:4 applicable to 

pleadings in chancery suits. 
Joyce also filed grounds of defense, a counterclaim arising out 

of the same automobile accident, a certificate of service of 

interrogatories, and a motion to produce. Joyce had never been 

served with a notice of motion for judgment. 

 On December 1, 1997, the trial court granted Gilpin’s 

motion for a nonsuit of her claims against Dailey.2 On that same 

day, the trial court heard oral argument on Joyce’s motion to 

dismiss. At that hearing, it was stipulated that Gilpin had not 

exercised due diligence in order to obtain service of process on 

Joyce. Thereafter, in accord with a request from the trial 

court, the parties filed briefs stating their respective 

positions on the issue of dismissal of Gilpin’s action. 

 On May 29, 1998, the trial court entered an order 

sustaining Joyce’s motion and dismissing Gilpin’s motion for 

judgment with prejudice. We awarded Gilpin this appeal. 

 “An appearance for any other purpose than questioning the 

jurisdiction of the court—because there was no service of 

process, or the process was defective, or the action was 

commenced in the wrong county, or the like—is general and not 

special, although accompanied by the claim that the appearance 

is only special.” Norfolk and Ocean View Railway Co. v. 

 

2

On brief, Gilpin correctly states that she was prohibited 

from taking a nonsuit of her claims against Joyce because of his 

counterclaim against her. See Code § 8.01-380(C). 

2
Consolidated Turnpike Co., 111 Va. 131, 136, 68 S.E. 346, 348 

(1910)(emphasis added). Joyce did not make a special 

appearance. Rather, by filing a grounds of defense and a 

counterclaim, Joyce made a general appearance in the trial court 

proceedings. Indeed, on brief, Joyce concedes this is so. A 

general appearance “is a waiver of process, equivalent to 

personal service of process, and confers jurisdiction of the 

person on the court.” Nixon v. Rowland, 192 Va. 47, 50, 63 

S.E.2d 757, 759 (1951). 

 In 1977, the General Assembly enacted Code § 8.01-277, 

which provides in pertinent part that: 

 A person, upon whom process to answer any action 

has been served, may take advantage of any defect in 

the issuance, service or return thereof by a motion to 

quash filed prior to or simultaneously with the filing 

of any pleading to the merits. 

(Emphasis added.) 

 Under familiar principles, because this statute is in 

derogation of the common law, we will strictly construe it. By 

its express terms, this statute applies only where process has 

actually been served on the defendant. Thus, this statute does 

not permit Joyce to simultaneously make a general appearance and 

assert the protection of the bar provided in Rule 3:3 because he 

was not served with process. Joyce’s general appearance was 

entirely voluntary. 

3
 We reach the same conclusion with regard to Rule 3:3 under 

the circumstances of this case. By its express terms, this rule 

applies only where there has been service of process. As we 

have noted, Joyce made a voluntary general appearance without 

having been served with process. 

 Joyce contends, however, that his general appearance more 

than one year after the commencement of an action should be 

equivalent to a service of process more than one year after the 

commencement of an action. Thus, he asserts that he is entitled 

to the protection of Rule 3:3. The bedrock of Joyce’s position 

is that, because the trial court had not obtained personal 

jurisdiction over him within one year following commencement of 

Gilpin’s action, Rule 3:3 serves as an absolute bar to any 

judgment being entered against him. We disagree. 

 It is true that a voluntary general appearance subjects a 

defendant to the jurisdiction of the trial court and, thus, may 

be considered “equivalent to personal service of process.” 

Nixon, supra. However, unlike a defendant who makes a voluntary 

appearance, a defendant actually served with process is under a 

compulsion to make an appearance or suffer a default judgment. 

Thus, in Gilbreath v. Brewster, 250 Va. 436, 463 S.E.2d 836 

(1995), we held that the defendants, who were actually served 

with process more than one year after commencement of the action 

against them, were entitled to dismissal of the claim against 

4
them with prejudice under Rule 3:3 while still maintaining a 

counterclaim and a third-party claim. Id. at 441-42, 463 S.E.2d 

at 838. 

 The distinction between the facts in Gilbreath and those in 

the present case is that in the former case service of process 

was actually secured on the defendants and, thus, their 

appearance was necessary to avoid default. Here, Joyce was 

under no such compulsion. We believe that this is the very 

distinction the legislature intended to create when it enacted 

Code § 8.01-277 permitting only a defendant who has been 

actually served with process to raise specific jurisdictional 

challenges prior to or simultaneously with the filing of any 

pleading to the merits. This same distinction is consistent 

with the express terms of Rule 3:3 and our holding in this 

appeal.3

 

3

We recognize that in Dennis v. Jones, 240 Va. 12, 393 

S.E.2d 390 (1990), we held that where substituted service of 

process through the Department of Motor Vehicles was ineffective 

and, thus, personal jurisdiction was not obtained over the 

defendant, the resulting default judgment would be set aside and 

the motion for judgment would “be dismissed under Rule 3:3 

because it had been pending since 1987 and defendant has not 

been served with valid process.” Id. at 20, 393 S.E.2d at 395 

(emphasis added). Unlike the present case, in Dennis the 

plaintiff made an actual attempt to serve process, and the 

defendant was subsequently required to appear in order to 

contest the resulting default judgment against her. Here, 

however, Joyce’s appearance was entirely voluntary. 

5
 For these reasons, the judgment of the trial court will be 

reversed, Gilpin’s motion for judgment will be reinstated, and 

the matter will be remanded for a trial on the merits of the 

motion for judgment and on Joyce’s counterclaim. 

Reversed and remanded. 

6