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.1 An entry that the parties came by their attorneys is sufficient evidence of their appearance.12 The filing of a de13 Where murrer, plea, or answer constitutes an appearance. there are several defendants, an appearance for defendants generally must be construed as an appearance for all.14

11

$ 168. General or special appearance.

14

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 Ill. 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 Ill. 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 Ill. 107

(209)

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.18 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,2 or obtaining a continuance by agreement of parties,25 or moving

17 Abbott v. Semple, 25 Ill. 107. 18 McNab v. Bennett, 66 III. 157.

24

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.26 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,31 and taking an appeal or writ of error is held to constitute an appearance by the party appealing

28 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.

25 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.

or suing out the writ of error as to all subsequent proceedings after remand.32

§ 169. Time for appearance.

A defendant may, as soon as suit is brought against him, and without waiting to be served with summons, enter his appear

ance,33

§ 170. Effect of an appearance.

A general appearance waives process, and all objections to the form or manner of service thereunder.34 One who, in the absence of fraud or imposition, by a voluntary appearance makes himself a party to a cause, is conclusively presumed to have notice of everything that appears of record in the case.35 Irregularities in the manner in which a change of venue has been taken are waived by a motion for a continuance in the court to which the case has been removed.36 In the absence of a rule of court requiring notice, the defendant, after the entry

32 Chesapeake, O. & S. W. R. Co. v. Heath's Adm'r, 87 Ky. 651, 9 S. W. 832; Bustamente v. Bescher, 43 Miss. 172; Allen v. Brown, 4 Metc. (Ky.) 342; Gill v. Johnson's Adm'rs, 1 Metc. (Ky.) 649; Scarlett v. Hicks, 13 Fla. 314. It is held in Wisconsin that a general appeal from a judgment by default does not waive the want of jurisdiction of the court to enter the judgment. Zimmerman v. Gerdes, 106 Wis. 608, 82 N. W. 532; Rockman v. Ackerman, 109 Wis. 639, 85 N. W. 491.

33 Hecht v. Feldman, 54 Ill. App. 144; Heyman v. Uhlman, 34 Fed. 686. When an appearance is required to be entered by statute or rule of court, these must be consulted. See Jones v. Everett Land Co., 15 U. S. App. 512, 61 Fed. 529.

34 1 Barbour, Ch. Pr. 78; 1 Hoffman, Ch. Pr. 171; Kinsella v. Cahn, 185 Ill. 208, 56 N. E. 1119; Groves v. Grant County Court, 42 W. Va. 587, 26 S. E. 460; Creighton v. Kerr, 20 Wall. (U. S.) 8; Mineral Point R. Co. v. Keep, 22 Ill. 9; Widdrington v. Charleton, 10 Mod. 86, cited in Strange, 155; Seattle, L. S. & E. Ry. Co. v. Union Trust Co. of New York, 48 U. S. App. 255, 79 Fed. 179; Rothschild v. Knight, 176 Mass. 48, 57 N. E. 337.

35 Austin v. Dufour, 110 Ill. 85.

36 Flagg v. Roberts, 67 Ill. 485; Mannix v. State, 115 Ind. 245, 17 N. E. 565; Vinsen v. Lockard, 70 Ky. 458.

of appearance, is required to take notice of all subsequent action on the part of the court.37 A party, by appearing to a cause and pleading to the merits, is estopped from denying the jurisdiction of the court over his person;38 but where a court is wholly without jurisdiction of the subject-matter, the objection is not waived by appearance and plea to the merits.39 In a transitory cause, a voluntary appearance confers jurisdiction, though both parties are nonresidents of the state. 40 Where a resident of one state appears generally in an action brought against him in another state, the jurisdiction of the court is complete. If a nonresident has voluntarily submitted himself to the jurisdiction of the court, the procedure is in all respects the same as if he were a resident of the state.42

41

§ 171. Who may appear.

Every litigant may appear in person or by attorney, but

37 Domestic Bldg. Ass'n v. Nelson, 172 Ill. 386, 50 N. E. 194. Where, before the entry of a special appearance by a defendant, the cause was continued by agreement, and afterwards defendant not only appeared and defended generally, but filed a cross petition, objection to the original process was thereby waived. Hercules Iron Works v. Elgin, J. & E. Ry. Co., 141 Ill. 491, 30 N. E. 1050. Where a defendant appears, answers, and goes to trial, without objection, at a term before the return term of the summons, he waives the right to postpone the hearing until the return term. Anderson v. Moore, 145 Ill. 61, 33 N. E. 848.

38 Ferguson v. Oliver, 99 Mich. 161, 58 N. W. 43, 41 Am. St. Rep. 593; Black, Judgm. § 225.

39 Lackett v. Rumbaugh, 45 Fed. 23; Ervin v. Oregon Ry. & Nav. Co., 62 How. Pr. (N. Y.) 490; Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. 85.

40 Cofrode v. Gartner, 79 Mich. 332, 44 N. W. 623, 7 L. R. A. 511. See, however, dissenting opinion in case last cited, and Mason v. Blaireau, 2 Cranch (U. S.) 240.

41 German Bank v. American Fire Ins. Co., 83 Iowa, 491, 50 N. W. 53; Ferguson v. Oliver, 99 Mich. 161, 58 N. W. 43, 41 Am. St. Rep. 593; Flint v. Comly, 95 Me. 251, 43 Atl. 1044.

42 Flint v. Comly, 95 Me. 251, 49 Atl. 1044

43 Henck v. Todhunter, 7 Har. & J. (Md.) 275, 16 Am. Dec. 300.