CHAPTER VIII.

APPEARANCE.

166. Definition and nature.

Appearance is a coming into court as a party to a suit.1 An appearance is either general or special. By a general appearance, a defendant appears for all purposes in the suit; by a special appearance, he appears solely for the purpose of objecting to the jurisdiction on account of a defect, omission, or irregularity in the service of the summons upon him, or perhaps for some other reason.2 A special appearance is sometimes termed a "conditional appearance." Appearances are voluntary when the defendant comes in gratis, or upon the return of the subpoena; or compulsory, when it is the consequence of any of the processes of contempt. A defendant may, if he has been informed of a bill being filed against him, enter an appearance, or

1 Bouvier, Law. Dict. Certain text writers define appearance to be a formal proceeding by which the defendant submits himself to the jurisdiction of the court. 1 Barbour, Ch. Pr. 77; Beach, Mod. Eq. Pr. § 211; Foster, Fed. Pr. § 99; Flint v. Comly, 95 Me. 251, 49 Atl. 1044. This definition seems to be too broad, for the reason that, where a defendant appears specially, he does not submit himself to the jurisdiction of the court.

2 Foster, Fed. Pr. § 99; Meyer v. Brooks, 29 Or. 203, 44 Pac. 281; Abbott v. Semple, 25 Ill. 107; St. Louis Car Co. v. Stillwater St. Ry. Co., 53 Minn. 129, 54 N. W. 1064; South Omaha Nat. Bank v. Farmers' & Merchants' Nat. Bank, 45 Neb. 29, 63 N. W. 128; Halstead v. Manning, Bowman & Co., 34 Fed. 565; Flint v. Comly, 95 Me. 251, 49 Atl. 1044.

1 Daniell, Ch. Pl. & Pr. (4th Ed.) 536.

1 Barbour, Ch. Pr. 78. To be effectual, a voluntary appearance must be with the intention to appear in a suit known by the defendant to be pending. Crary v. Barber, 1 Colo. 172. What constitutes an appearance is determined by the course and practice of the court where it is entered. Cooley v. Lawrence, 12 How. Pr. (N. Y.) 176.

cause an appearance to be entered for him, without waiting to be served with process. This is called "appearing gratis." An appearance gratis can only be made by a defendant named in the introduction or prayer for process in the bill, unless by consent of all the parties to the suit."

§ 167. What constitutes an appearance.

It is the usual practice to file in the clerk's office of the court in which the cause is pending a paper entitled in the cause, reciting that the party enters his appearance in the cause, either in person or by his solicitor. Where a nominal defendant acknowledges service on the back of the summons, and in the same writing authorizes the complainant's solicitor to enter his appearance, which is done on proof of the execution of the acknowledgment, such defendant is subject to the jurisdiction of the court. The record, reciting the appearance of the defendant

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1 Barbour, Ch. Pr. 78, 81; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 539; Foster, Fed. Pr. § 99; Georgia Lumber Co. v. Bissell, 9 Paige (N. Y.) 225.

• Foster, Fed. Pr. § 100; Attorney General v. Pearson, 7 Sim. 290; Kentucky Silver Min. Co. v. Day, 2 Sawy. 468, Fed. Cas. No. 7,719; 1 Barbour, Ch. Pr. 81; Bozon v. Bolland, 1 Russ. & M. 69. For consid eration of appearance gratis, and the effect thereof, see 1 Barbour, Ch. Pr. 81; Waffle v. Vanderheyden, 8 Paige (N. Y.) 45; Bowhee v. Grills, 1 Dickens, 38; Fell v. Christ's College, 2 Brown Ch. 279; Capel v. Butler, 2 Sim. & S. 457; Perry v. Weller, 3 Russ. 519; Allard v. Jones, 15 Ves. 605; Hill v. Rimell, 2 Mylne & C. 641; Webster v. Threlfall, 1 Sim. & S. 136; Jones v. Fulghum, 3 Tenn. Ch. 193; Howe v. Willard, 40 Vt. 654. A party may likewise appear gratis at the hearing, and consent to be bound by the decree, if he is named as a party defendant upon the record. If he is not so named, it seems he can only so appear when the parties consent. 1 Barbour, Ch. Pr. 81; Capel v. Butler, 2 Sim. & S. 457; Bozon v. Bolland, 1 Russ. & M. 69; Attorney General v. Pearson, 7 Sim. 290. By appearing gratis, defendant could not, under the English practice, deprive the complainant of his right to move for an injunction ex parte. 1 Barbour, Ch. Pr. 81, 82; Allard v. Jones, 15 Ves. 605; Perry v. Weller, 3 Russ. 519.

7 See Livingston v. Gibbons, 4 Johns. Ch. (N. Y.) 94; Mutual Nat. Bank of New Orleans v. Moore, 50 La. Ann. 1332, 24 So. 304.

8 Snell v. Stanley, 63 Ill. 391. See, for appearance indorsed on summons, Harrison v. Morton, 87 Md. 671, 40 Atl. 897. See supra, § 133.

by his attorney, affords presumptive evidence that the court had jurisdiction of the defendant's person, and the authority of the attorney is also presumed. Mere attendance in court to witness its proceedings in the cause does not constitute an appearance.10 An entry reciting that "defendants" appeared will be construed to include only those defendants served with process.11 An entry that the parties came by their attorneys is sufficient evidence of their appearance.12 The filing of a demurrer, plea, or answer constitutes an appearance.13 Where there are several defendants, an appearance for defendants generally must be construed as an appearance for all.14

§ 168. General or special appearance.

An appearance not shown by a proper entry to be special must be taken as a general appearance,15 and an appearance for any other purpose than to question the jurisdiction is general.16 A party who appears to set up want of jurisdiction as a defense

Lawrence v. Jarvis, 32 Ill. 311.

10 Crary v. Barber, 1 Colo. 172; Newlove v. Woodward, 9 Neb. 502, 4 N. W. 237. See Philhower v. Farley, 5 N. J. Law J. 376.

11 Williams v. Lewis, 2 Stew. (Ala.) 41; Davis v. Whittaker, 38 Ark. 435; Chester v. Miller, 13 Cal. 558; Gardner v. Hall, 29 Ill. 277.

12 Hobson v. Emanuel, 8 Port. (Ala.) 442; Lawrence v. Jarvis, 32 III. 304. Where there is such an entry, and the entry of a motion to dismiss the suit, and also a motion for a continuance of the cause, if such an appearance can be limited, contradicted, or explained, it can only be done by clear and satisfactory evidence. Swift v. Lee, 65 Ill. 336.

13 Protection Life Ins. Co. v. Palmer, 81 Ill. 88; Dart v. Hercules, 34 Ill. 395; Albert v. Clarendon Land Investment & Agency Co., 53 N. J. Eq. 623, 23 Atl. 8; Livingston v. Gibbons, 4 Johns. Ch. (N. Y.) 94; Kauter v. Enty, 8 Kan. App. 788, 61 Pac. 818; Lowry v. Tile, Mantel & Grate Ass'n, 98 Fed. 817; Keyser v. Pollock, 20 Utah, 371, 59 Pac. 87. 14 Kenyon v. Shreck, 52 III. 382. Where a part of several defendants are served personally, and others by publication, an appearance by "the defendants" will be construed as an appearance by all of the defendants. Humphrey v. Newhall, 48 Ill. 116; Sullivan v. Sullivan, 42 III. 315.

15 Flake v. Carson, 33 Ill. 518; Collier v. Falk, 66 Ala. 223; Kleinschmidt v. Morse, 1 Mont. 100.

16 Abbott v. Semple, 25 İl. 107

(209)

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must appear specially, by confining his objections to that point, or he will be held to appear for all purposes. Where he makes several motions not relating to that objection, he will be considered as having appeared generally.17 But where, when the question of jurisdiction is decided against him, he takes no further step in the cause, either in person or by attorney, there is not such an appearance as authorizes his default to be taken.1 An appearance for the special purpose of objecting to defects in the process or service, or of making a motion to dismiss, is not a general appearance.19 Where a defendant appears solely for the purpose of objecting to the jurisdiction of the court over his person, such motion is not a voluntary appearance. Where, however, the motion involves the merits of the case, the rule is otherwise.20 The taking of any proceeding other than a special appearance, and a motion or plea thereon founded, is equivalent to a general appearance.21 Whether an appearance is general or special does not depend upon the form of the pleading, but on its substance.22 Moving for a rule on the complainant to file a bond, and asking leave to attach a jurat to an affidavit on file, constitute a general appearance;23 and so is an appearance by attorney so as to secure an extension of time to plead or answer,24 or obtaining a continuance by agreement of parties,25 or moving

17 Abbott v. Semple, 25 Ill. 107.

18 McNab v. Bennett, 66 Ill. 157.

19 Schoonhoven v. Gott, 20 Ill. 46, 71 Am. Dec. 247; Chubbuck v. Cleveland, 37 Minn. 466, 35 N. W. 362.

20 Flint v. Comly, 95 Me. 251, 49 Atl. 1044; Elliott v. Lawhead, 43 Ohio St. 172, 1 N. E. 577; St. Louis Car Co. v. Stillwater St. Ry. Co., 53 Minn. 129, 54 N. W. 1064; Handy v. Insurance Co., 37 Ohio St. 366. 21 Foster, Fed. Pr. § 100, citing Jones v. Andrews, 10 Wall. (U. S.) 327; Livingston v. Gibbons, 4 Johns. Ch. (N. Y.) 94; State of New Jersey v. People of New York, 6 Pet. (U. S.) 323; Van Antwerp v. Hulburd, 7 Blatchf. 426, Fed. Cas. No. 16,826; Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98.

22 Bankers' Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N. W. 484.

23 Long v. Trabue, 8 Ill. App. 132.

24 Briggs v. Stroud, 58 Fed. 717; Fonville v. Monroe, 74 Ill. 126.

25 Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726; Bazzo v. Wallace, 16 Neb. 290, 20 N. W. 315.

for a continuance.20 The filing of a motion to set aside and vacate a void judgment, rendered without service of process, the appearance being for the purpose of the motion only, does not constitute an appearance so as to render that judgment valid.27 After a general appearance, a defendant cannot enter a special appearance;28 and a defendant appearing specially, but afterwards contesting the case on its merits, waives the special appearance.29 A petition, in general terms, for the removal of a cause to the federal court, without specifying or restricting the purpose of the defendant's appearance in the state court, is not, like a general appearance, a waiver of any objection to the jurisdiction of the court over the person of the defendant, and does not amount to a general appearance, but constitutes a special appearance only.30 By taking an appeal, the defendant submits to the jurisdiction of the lower court, and waives any irregularity in the process or its service,81 and taking an appeal or writ of error is held to constitute an appearance by the party appealing

26 Lane v. Leech, 44 Mich. 163, 6 N. W. 228; Shaffer v. Trimble, 2 G. Greene (Iowa) 464; Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726. See, however, Hoyt v. Macon, 2 Colo. 113.

27 Greene v. Woodland Ave. & W. S. St. R. Co., 62 Ohio St. 67, 56 N. E. 642.

28 Briggs v. Stroud, 58 Fed. 717; Lane v. Leech, 44 Mich. 163, 6 N. W. 228; Thompson v. Greer, 62 Kan. 522, 64 Pac. 48.

29 Sealy v. California Lumber Co., 19 Or. 94, 24 Pac. 197; Winfield Nat. Bank v. McWilliams, 9 Okl. 493, 60 Pac. 229; Crawford v. Foster, 84 Fed. 939.

30 Wabash Western Ry. v. Brow, 164 U. S. 271; Spreen v. Delsignore, 94 Fed. 71. For consideration of effect of appearing for the purpose of filing a petition for removal to the federal court, see Tallman v. Baltimore & O. R. Co., 45 Fed. 156; Brooks v. Dun, 51 Fed. 138; Kinne v. Lant, 68 Fed. 436; Schwab v. Mabley, 47 Mich. 512, 11 N. W. 294; Goldie v. Morning News, 156 U. S. 518.

81 Hurford v. Baker, 17 Neb. 443, 23 N. W. 339; Adams Express Co. v. St. John, 17 Ohio St. 641; Brown v. Humphreys, 1 J. J. Marsh. (Ky.) 394; Bustamente v. Bescher, 43 Miss. 172; Hodges v. Frazier, 31 Ark. 58. It is held in Tennessee that praying a general appeal from the decree by a defendant not summoned, and who did not appear, constitutes an appearance. Akin v. Watson (Tenn. Ch. App.) 52 S. W. 905.