#### Adams *v.*The Hollow Rook Mining & Transportation Co.

*Appearance—Waiver by demurring to petition—Jurisdiction of person net reserved—Court of Appeals—Rules of court—Dismissals—Delay in filing brie}.*

1. The filing by defendant of a general demurrer to a petition, in which demurrer he fails to make any reservation as to the court’s jurisdiction over him, is an entry of appearance and a waiver of his right to object on the ground of jurisdiction over his person.

2. A rule of the Court of Appeals requiring briefs to be filed in error proceedings within a reasonable time is a valid exercise of the power conferred upon that court, and a dismissal of such proceedings in error for failure to file such brief for a period of four months after a petition in error is filed does not constitute an abuse of the discretion of the court In that behalf.

(No. 17365

Decided June 26, 1923.)

Error to the Court of Appeals of Jefferson county.

The Hollow Rock Mining & Transportation Company filed a petition in the court of common pleas of Jefferson county against James L. Adams, setting forth a certain written contract which it claimed the defendant had breached and upon which it sought the judgment of the court in damages.

Service was sought to be obtained by publication, the defendant being a nonresident, and an affidavit in attachment was also made and filed and an order of attachment issued thereon.

A transcript of the docket and journal entries showed the following pertinent proceedings:

*359January 8, 1921. Petition and precipe filed and summons issued to sheriff of Jefferson county, Ohio, and affidavit for attachment filed.

March 14, 1921. On motion and affidavit of defendant, the Oldroyal Mining Machine Company is made party defendant and granted 15 days to file answer.

March 14, 1921. Affidavit of James L. Adams, defendant, filed.

March 23, 1923. Motion to quash service of summons filed. (By defendant Adams.)

April 4, 1921. Motion to quash service of summons overruled. Exceptions.

June 29, 1921. Demurrer overruled. Exceptions.

July 5,1921. This cause now coming on for hearing, was submitted to the court on the petition of plaintiff, the answer of the defendant, the Oldroyal Mining Machine Company, and the evidence. The court finds that the defendant, James L. Adams, has had due notice of this action and that he has entered his appearance by the filing of a general demurrer, and by certain motions and affidavits herein, and that he is in default for answer to said petition, and that thereby the allegations of said petition are confessed by him to be true.

Thereupon judgment was rendered in the court of common pleas against the defendant, James L. Adams, to which he excepted. Error was prosecuted by Adams to the Court of Appeals. Upon hearing in that court, the judgment of the Court of Appeals appears in the following journal entry:

“December 19, 1921. This cause coming on this day to be heard upon the motion of defendant in *360érror to have the petition in error, heretofore filed in this ease, dismissed, and it appearing to the court that counsel for plaintiff in error, James L. Adams, has failed to file a brief, as required by Section 11572, of the General Code of Ohio, or at all, it is ordered that said petition in error be, and the same hereby is, dismissed at the costs of plaintiff in error.”

The recoi’d in the Court of Appeals does not show an exception in behalf of James L. Adams to this judgment of dismissal.

*Mr. Frank H. Kerr*and *Mr. Ira Blackburn,*for plaintiff in error.

*Mr. A. C. Lewis*and *Mr. 8. G. Kerr,*for defendant in error. ' ,

Wanamaker, J.

The first question of merit involved here is: Did the court of common pleas have jurisdiction over the person of the defendant, James L. Adams?

■ Whethér or not the original service was in all respects in compliance with law, the trial court held that the defendant Adams had “ entered his appearance by the filing of a general demurrer, and by certain motions and affidavits herein.”

The bill of exceptions itself discloses the following demurrer as originally filed by said James L. Adams:

“Now comes James L. Adams and files this his demurrer to the petition of plaintiff filed herein, and for cause of demurrer says that said petition does not state facts sufficient to constitute a cause of action, and that the action for a money judgment *361and forfeiture are improperly joined as the contract on which the action is based does not provide for a forfeiture.”

The bill of exceptions further discloses that ‘ ‘ after said demurrer was filed in the court of common pleas,” there was inserted by lead pencil this language: “For the purpose of this demurrer and not entering his appearance herein for any other purpose.”

It has long been the settled rule of our courts that such demurrer as originally filed in this cause constitutes a waiver of any defect in the service and is equivalent to an entry of appearance.

The lead pencil insertion thereafter made is insufficient to withdraw such appearance when once entered. The record is very fragmentary and incomplete as to showing the motions and affidavits referred to in the journal entry of the court of common pleas.

There is sufficient in the transcript of docket and journal entries in that court to indicate the likely nature of the affidavits and motions, and there is nothing in the entries to in any wise impair the judgment of the court pertaining to such entry of appearance.

It is shown by the journal entry of the Court of Appeals that when the cause came into that court on error it was dismissed, because:

“Counsel for plaintiff in error, James L. Adams, has failed to file a brief, as required by Section 11572, of the General Code of Ohio, or at all.”

Now, Section 11572 fails to disclose any requirement as to the filing of briefs. The petition in er*362ror filed in the Supreme Court complains of the judgment below, however, upon this ground:

“The said Court of Appeals erred in enforcing an arbitrary rule as to filing briefs, and with which plaintiff in error was not acquainted,” etc.

Presumably the error complained of was not in Section 11572, General Code, as indicated by the journal entry filed by plaintiff in error, but rather in a rule of the court. The rule does not appear in the printed record, but the Court of Appeals has a perfect right to have a rule providing for the filing of briefs that causes therein may be duly expedited.

The record in the Court of Appeals, as filed in this court, discloses the fact that the petition in error in the Court of Appeals was filed August 13, 1921. More than four months had elapsed when the hearing was had in the Court of Appeals, which resulted in the dismissal of the cause for failure to file briefs.

We cannot say that dismissal of the proceedings in error by the Court of Appeals after four months’ delay, in which there was no apparent effort made to advise the court of the errors complained of by proper brief, or by authorities urged in support of such errors, would be the exercise of arbitrary power on the part of the Court of Appeals, especially since there is nothing in the record tending in any wise to show an abuse of discretion.

We find no error in the proceedings below as disclosed by the recox’d filed in this ease.

*Judgment affirmed.*

Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur.