decree pro confesso has been vacated, a defendant cannot, under leave to answer, demur.98

§ 162. Effect of amendment of bill.

Where matters alleged in an amendment to a bill are wholly immaterial, it is not error to refuse to enter a decree pro confesso as to the original bill, which has been answered, upon taking the amended bill for confessed for want of an answer.99 Where the complainant amends his bill after personal service of a subpoena on a defendant, who neglects to appear, the service of a new subpoena is not necessary to authorize the entering of an order to take the amended bill as confessed; and where he amends his bill during the running of the order for the absentee to appear, it is not necessary to obtain a new order for the absentee to appear and answer to the amended bill, and to advertise a second time.100 On filing an amended bill, adding a new and material averment in a case, when the defendant has failed to appear it is held to be irregular to take an order pro confesso on the same day, and without serving new process; and this irregularity is sufficient ground for opening a decree founded on such proceedings, and granting a rehearing. 101 Where an original bill is taken as confessed, and an amended bill is filed, making other persons parties, the order pro confesso is thereby opened.102 Where a pro confesso order has been made, the effect of filing an amended or supplemental bill after such order has been taken is to vacate the order, and the defendants are admitted to answer as though the decree pro confesso had not been

98 Hand v. Hand, 60 N. J. Eq. 518, 46 Atl. 770. See, as to pleading ⚫ statute of limitations in Maryland, Belt v. Bowie, 65 Md. 350, 4 Atl. 295.

99 Black v. Lusk, 69 Ill. 70. See post, § 412.

100 Bond v. Howell, 11 Paige (N. Y.) 233.

101 Harris v. Deitrich, 29 Mich. 366. See Reno's Adm'r v. Harper, 23 Miss. 154; Meyer v. Kuhn, 25 U. S. App. 174, 65 Fed. 705; Trustees of Real Estate Bank v. Bozeman, 15 Ark. 316.

102 Bank of Utica v. Finch, 1 Barb. Ch. (N. Y.) 75. See, also, Weightman v. Powell, 2 De Gex & S. 570.

made.103 A material amendment of a bill after a decree pro confesso for default in pleading has been opened is a waiver by the complainant of his right to raise on appeal the question of the propriety of such order.104

$ 163. Statutory provisions for vacating decrees pro confesso.

Frequently, statutory provisions or rules of court are found. providing for the opening of orders and decrees pro confesso. In the absence of any statute or rule, the right to vacate such decree exists.105

103 Gibson v. Rees, 50 Ill. 406, citing Weightman v. Powell, 2 De Gex & S. 570; O'Callaghan v. Blake, 9 Ir. Eq. 220; Lyndon v. Lyndon, 69 Ill. 43; Bank of Utica v. Finch, 1 Barb. Ch. (N. Y.) 75; Scudder v. Voorhis, 1 Barb. (N. Y.) 55. See, also, Albright v. Texas, S. F. & N. R. Co., 8 N. M. 422, 46 Pac. 448. In Illinois it is held that it is not error to require a defendant already in court by service to answer a supplemental bill without further service, and, on his failure to do so, to render a decree pro confesso as to the supplement. Mix v. Beach,

46 Ill. 311.

104 Howard v. Pensacola & A. R. Co., 24 Fla. 560, 5 So. 356, citing Weightman v. Powell, 2 De Gex & S. 570; Jopling v. Stuart, 4 Ves. 619. 103 Williams v. Thompson, 2 Brown Ch. 279; Cunyngham v. Cunyngham, Amb. 89. In Illinois it is provided by statute that if the defendant shall appear at the next term, and offer to file his answer to the bill, the court shall permit him to do so upon his showing sufficient cause, and paying the costs of the preceding terms. In such case, the decree should be vacated, and the cause should be proceeded in as in other cases. Rev. St. Ill. c. 22, § 17; Smith v. Brittenham, 88 Ill. 291. Provisions are found in many of the states for setting aside decrees pro confesso, where the defendant has been constructively served, within a given period after the same have been entered. Illustrative thereof is Rev. St. Ill. c. 22, § 19. For a construction of this statute, see Lawrence v. Lawrence, 73 Ill. 577; Caswell v. Caswell, 120 Ill. 377, 11 N. E. 342; Whittaker v. Whittaker, 151 Ill. 266, 37 N. E. 1017; Southern Bank of St. Louis v. Humphreys, 47 Ill. 227; Martin v. Gilmore, 72 Ill. 193; Wellington v. Heermans, 110 Ill. 564; Trustees of Methodist Episcopal Church v. Field, 135 Ill. 112, 25 N. E. 667; Sale v. Fike, 54 Ill. 292. Similar statutes exist in other jurisdictions. See Brown v. Brown, 86 Tenn. 277, 6 S. W. 869; Rodney v. Seelye, 54 Miss. 537; Lehman v. Collins, 69 Ala. 127; Rootes' Ex'x v. Tompkins' Trustees, 3 Grat. (Va.) 98; Porter v. Hanson, 36 Ark. 591. For practice in federal courts, see Stuart v. City of St. Paul, 63 Fed. 644; Bronson v. Schulten, 104 U. S. 415; United States Equity Rule 19.

§ 164. Form of affidavit in support of motion to set aside order pro confesso.

[Title of court and cause.]

A. B., the above-named defendant, makes oath and says that [state facts showing the absence of negligence in failing to answer, and also showing meritorious defense to the bill]. Affiant therefore prays that the default heretofore had in this cause against him may be set aside, and that he may be permitted to file his answer herewith exhibited, a copy of which is hereto attached, and marked "Exhibit A," and made a part hereof, which answer he now offers to file in this cause.

A. B.

Subscribed and sworn to, etc.

§ 165. Form of order vacating default and order pro confesso. [Title of court and cause.]

This cause having come on to be heard, upon the motion of A. B., defendant herein, to set aside the default and decree pro confesso herein, and on the affidavit filed in support of said motion, and the proposed answer to be filed herein, and the court being fully advised in the premises, on motion of the solicitor for the said defendant.

It is ordered, adjudged, and decreed that the said default and decree pro confesso herein be, and the same are hereby, vacated and set aside, and that said defendant be allowed, and leave is hereby given him, to file his answer to said bill of complaint. [If any terms are imposed as a condition to setting aside the default, state them.]

(206)

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.

41 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

8

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 consideration 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.

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 sum. mons, Harrison v. Morton, 87 Md. 671, 40 Atl. 897. See supra, § 133.