JUSTICE COOK delivered the opinion of the court:

Plaintiff, Thomas V. Ryburn, filed a complaint in mandamusagainst the State of Illinois and McLean County, seeking to have aconviction expunged. The McLean County circuit court dismissed theaction, and Ryburn appeals. We vacate the judgment and dismiss theaction on other grounds.

Ryburn is an inmate of the Illinois Department of Corrections. In his mandamus complaint, filed on May 13, 2002, without theaid of a lawyer, Ryburn sought to have his conviction in a 1994 caseexpunged. It appears from the record that Ryburn was already servingprobation on a previous conviction when he was found guilty ofdomestic battery in 1994. Ryburn alleged that this second convictionwas based on the testimony of his ex-wife, Lisa Ryburn, but that shelater recanted that testimony.

In support of these allegations, Ryburn attached to hiscomplaint two letters Lisa wrote to him. In a letter postmarkedSeptember 24, 1996, Lisa wrote, "I keep so busy so I don't have timeto think. Because when I think, I think about the fact your [sic]not here and my responsibility in that. *** I can't believe Itreated the other person who loved me more than his own life sobadly." In a second letter, undated, Lisa wrote, "I don't like theperson I become when I'm around you and that is not your fault andyou have no control over that either."

Ryburn also attached to his complaint a copy of an April10, 1998, agreed order entered in the McLean County circuit court inthe Ryburns' dissolution-of-marriage case. The order containedfactual findings that he and Lisa had reconciled and planned toremarry and sought joint custody of their children. In addition, theorder stated that Lisa "withdraws her allegations of abusive conductby [Ryburn,] which she made in her complaint for order of protection."

Ryburn's mandamus complaint asked for the trial court toissue an order of mandamus ordering defendants (1) to expunge all ofhis "civil/crim. domestic history(s) from all record's [sic]" and (2)to make a criminal investigation into what he "was subjected tophysically/mental/emotionally." The complaint's caption named theState and McLean County as defendants, and in the body it referred to"[d]efendant, Charles Reynard[,] and Sandra Parker, *** the Prosecutor/Record(s)keeper."

The complaint languished after being filed with the McLeanCounty clerk's office and was never served on anyone. On July 23,2002, Ryburn filed a motion for judgment on the pleadings. On August29, 2002, the trial court sent a letter to the Illinois AttorneyGeneral's office, enclosing Ryburn's complaint and asking that thecase be assigned to the appropriate person. McLean County has notbeen involved in this litigation.

On October 9, 2002, the State filed a motion to dismissthe action. This combined motion first asked the trial court todismiss the lawsuit under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2002)) for failure to state acause of action. Second, the State objected to personal jurisdictionunder section 2-301 (735 ILCS 5/2-301 (West 2002)). The court held ahearing on the combined motion at which Ryburn was present. Withoutaddressing the issue of personal jurisdiction, the court dismissedthe action under section 2-615.

We begin our discussion by considering the issue ofpersonal jurisdiction because "[i]t is essential to the validity of ajudgment that the court have both jurisdiction of the subject matterof the litigation and jurisdiction over the parties." State Bank ofLake Zurich v. Thill, 113 Ill. 2d 294, 308, 497 N.E.2d 1156, 1161(1986). The trial court's action, bypassing the jurisdiction issuein favor of dismissing the complaint for failure to state a cause ofaction, is inconsistent with this view.

There appear to be no Illinois cases addressing whether acourt faced with a combined motion to dismiss under section 2-615 andobjection to personal jurisdiction may choose to rule on the section2-615 motion. The reason for this is simple: until January 1, 2000,such a combined motion waived the objection to jurisdiction. Underprior law, a defendant who wished to challenge the court's jurisdiction would file a special appearance. 735 ILCS 5/2-301(a) (West1998) (amended 2000). A special appearance was an appearance madefor the "sole purpose" of objecting to the court's jurisdiction (Inre Marriage of Snider, 305 Ill. App. 3d 697, 699, 712 N.E.2d 947, 948(1999)) and had to be made prior to filing any other pleading ormotion. 735 ILCS 5/2-301(a) (West 1998) (amended 2000). Any appearance that was not a special appearance was deemed a general appearance (735 ILCS 5/2-301(a) (West 1998) (amended 2000)); by filing ageneral appearance, a defendant waived any objection to the court'sjurisdiction over the defendant (In re Estate of Loesch, 134 Ill.App. 3d 766, 769, 481 N.E.2d 32, 35 (1985)). A defendant who attempted to combine an objection to personal jurisdiction with anothermotion could inadvertently waive the objection because the combinedmotion would constitute a general appearance. See Mueller v.Mueller, 36 Ill. App. 2d 305, 307, 183 N.E.2d 887, 888-89 (1962).

The relevant section of the Code has been amended, and itnow allows an objection to personal jurisdiction to be combined withcertain other motions. 735 ILCS 5/2-301(a) (West 2002). The reasonfor this change was to prevent a defendant from accidentally waivingany objection to personal jurisdiction. K. Beyler, The Death ofSpecial Appearances, 88 Ill. B.J. 30, 31 (2000). A combined motionno longer constitutes a general appearance but raises the newquestion of the order in which the trial court should decide theissues raised in the motion.

To begin with, it is clear that under current law thetrial court faced with an objection to personal jurisdiction mustaddress the objection. The relevant provision now directs that whenfaced with an objection to personal jurisdiction "[t]he court shallenter an appropriate order sustaining or overruling the objection." 735 ILCS 5/2-301(b) (West 2002). In comparison, the previous versionstated that "[i]f the court sustains the objection, an appropriateorder shall be entered." 735 ILCS 5/2-301(c) (West 1998) (amended2000). Whereas previously the court only needed to enter an order ifthe objection was sustained, under the current law it must enter anorder whichever way it decides the issue. The trial court thus erredwhen it failed to address the State's objection to jurisdiction.

With a combined motion, this still leaves open thequestion of whether the objection to jurisdiction must be decidedbefore other issues. We have already noted the rule that a court'sjudgment is not valid if the court did not have jurisdiction over theparties. This is another way of saying that until the court haspersonal jurisdiction over a party, it has no power to act withrespect to that party. As one federal court has put it: "[L]ogiccompel[s] initial consideration of the issue of jurisdiction over thedefendant--a court without such jurisdiction lacks power to dismiss acomplaint for failure to state a claim." Arrowsmith v. United PressInternational, 320 F.2d 219, 221 (2d Cir. 1963).

From the defendant's perspective, it may not seem tomatter whether the trial court addresses the jurisdiction question orthe pleading question first. In our case, for example, the State isprobably satisfied regardless of whether it prevails because thecourt had no jurisdiction or because the complaint failed to state asufficient cause of action. But the difference to the plaintiff canbe significant. Whereas a dismissal for lack of personaljurisdiction does not operate as a disposition on the merits for resjudicata purposes (134 Ill. 2d R. 273), a dismissal for failure tostate a cause of action does. Bond v. Dunmire, 129 Ill. App. 3d 796,801, 473 N.E.2d 78, 82 (1983). To decide the case on the meritsinstead of on jurisdictional grounds, therefore, may prevent theplaintiff from refiling the cause of action in another forum.

For these reasons, jurisdictions that allow a defendant tofile one motion asserting both a lack of personal jurisdiction and aninsufficient cause of action generally require the trial court toconsider the jurisdictional issue first. See, e.g., Madara v. Hall,916 F.2d 1510, 1513-14 (11th Cir. 1990); Branson v. Exide ElectronicsCorp., 625 A.2d 267, 269 (Del. 1993); but see W.H. Elliott & Sons,Inc. v. Nuodex Products Co., 243 F.2d 116, 117 (1st Cir. 1957) (trialcourt decided pleading question first, with the determination tobecome final only if court later found it had personal jurisdiction). We agree with their reasoning and hold that when faced with a motioncombining an objection to personal jurisdiction and a section 2-615motion to dismiss for failure to state a cause of action, the trialcourt must address the jurisdictional issue first.

Although the trial court in our case did not address thejurisdictional issue, the record allows this court to do so. For acourt to acquire personal jurisdiction over the defendant, thedefendant must be served, waive service, or consent to jurisdiction. Thill, 113 Ill. 2d at 308, 497 N.E.2d at 1161. There is nothing inthe record to indicate service on either defendant, and Ryburnadmitted at the hearing that neither was ever served. Nor did thedefendants ever waive service. As for consent, the record shows thatthe State filed an appropriate combined motion and took no otheraction until the hearing on the motion, at which the assistantAttorney General made a few comments in support of the motion. Weconclude that the State did not consent to personal jurisdictionmerely by attending the hearing on its motion. Accordingly, thetrial court did not have personal jurisdiction over the defendants.

In light of the foregoing, we must vacate the trialcourt's dismissal on section 2-615 grounds. The court did not havejurisdiction over defendants and therefore had no power to addressthat issue. However, because defendants were not served and did notconsent to jurisdiction, we order that the objection to personaljurisdiction be granted and plaintiff's complaint be dismissed onthis basis.

Order vacated; cause dismissed.

TURNER and STEIGMANN, JJ., concur.