insufficient or that there was no legal service thereof, came too late and if the same was, as a matter of fact, insufficient the question had been waived and that a general appearance had been entered by answering, demanding a jury trial and other general appearances for the defendant, citing Compiled Laws, § 4904; Railway Co. v. DeBusk, 12 Colo. 294, 20 Pac. Rep. 752; Walker v. Turner, 42 N. W. Rep. 910; Burnham v. Doolittle, 15 N. W. Rep. 606; Williams v. Railway Co., 6 N. W. Rep. 445; Allen v. Coates, 11 N. W. Rep. 132.
The opinion of the court was delivered by
CORLISS, C. J. The justice of the peace before whom this action was instituted failed in the first instance to acquire jurisdiction of the person of the defendant because the summons was not properly served. The defendant appeared specially for the purpose of objecting to the court's jurisdiction, and moved the court to set aside the service of the process on the ground that the court had not acquired jurisdiction of his person. This motion being overruled, the defendant, after requesting and securing a change of venue, answered the complaint, and the case was tried. Defeat ensuing, defendant appealed from the judgment on questions of law and fact, demanding in his notice of appeal a new trial of the case in the district court. That court adjudged that the action should be dismissed for want of jurisdiction of the person of the defendant. This ruling is challenged by this appeal, and we think the appellant must succeed. Whether the defendant, by pleading and litigating the cause on the merits, waived his objection to the court's jurisdiction over his person, made before he had appeared specially, it is not necessary for us to decide. The defendant him- self invoked the jurisdiction of a new tribunal, not for the purpose of correcting an erroneous ruling on the question of jurisdiction, but to have the issues litigated upon the merits. He demanded a new trial in his notice of appeal, and under the statute such demand is an appeal to the district court to hear and determine the cause on the merits. Compiled Laws, § 6131. It is not entirely logical for him to repudiate a jurisdiction he has invoked, not for the special purpose of reversing an erron-
