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 appearance.33

§ 170. Effect of an appearance.

35

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 casc.3 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.

341 Barbour, Ch. Pr. 78; 1 Hoffman, Ch. Pr. 171; Kinsella v. Cahn, 185 III. 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.

37

of appearance, is required to take notice of all subsequent action on the part of the court.3 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.41 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.4 42

§ 171. Who may appear.

43

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.

not personally and by counsel.44 One sued by a wrong name may appear to the action by his correct name.

§ 172. Authority to enter an appearance.

45

In order to constitute a voluntary appearance, the appearance must be by the party or some one duly authorized.46 It was formerly held that a defendant was concluded by an appearance entered for him without his authority, and that the only redress he could obtain for such a wrong was an action against the person who had fraudulently assumed to act for him.47 The modern rule is firmly settled the other way, and may be stated thus: The entry of an appearance for a defendant carries with it a presumption that it was entered by authority. If the contrary be alleged, affirmative proof must be produced; and until it is, the appearance will be held to be valid. But on its being satisfactorily proved, promptly after the discovery of the fact that it was entered without authority, the defendant will be relieved from its consequences. 48

44 Talbot v. Talbot's Representatives,

bour, Ch. Pr. 80.

J. J. Marsh. (Ky.) 3; 1 Bar

45 T. W. Harvey Lumber Co. v. Herriman & Curd Lumber Co., 39 Mo. App. 214. "The principle 'Qui facit per alium facit per se' has no application to the right of the complainant to appear through

an agent who is not a licensed attorney." Kanape v. Reeves, 127 Ala. 216, 28 So. 666; Cobb v. Judge of Superior Court, 43 Mich. 289, 5 N. W. 309.

46 Rogers v. McLean, 31 Barb. (N. Y.) 304. See supra, § 119; post, 183.

47 Gifford v. Thorn, 9 N. J. Eq. 702; Price v. Ward, 25 N. J. Law, 225; Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq. 52, 10 Atl. 184; Eaton v. Pennywit, 25 Ark. 144; Lester v. Watkins, 41 Miss. 647; Rust v. Frothingham, 1 Ill. 331; Denton v. Noyes, 6 Johns. (N. Y.) 296, ɔ Am. Dec. 237. See Vilas v. Plattsburgh & M. R. Co., 123 N. Y. 440, 25 N. E. 941, 20 Am. St. Rep. 771.

48 Dey v. Hathaway Printing, Telegraph & Telephone Co., 41 N. J. Eq. 419, 4 Atl. 675; Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq. 52, 10 Atl. 184; Raub v. Otterback, 89 Va. 645, 16 S. E. 933; Flint v. Comly, 95 Me. 251, 49 Atl. 1044; Byers v. Sugg (Tenn. Ch. App.) 57 S. W. 397. See Myers v. Prefontaine, 40 App. Div. 603, 58 N. Y. Supp. 70; Du Boise v. Clark, 12 Colo. App. 220, 55 Pac. 750. A judgment

173. Withdrawal of appearance.

The court has power to allow a general appearance to be changed by amendment to a special appearance, or to be withdrawn.49 A general appearance stands in lieu of the service of process, and the party whose general appearance has been entered in a cause is no more entitled to withdraw from the cause than one who has been regularly served with process.50 Whether or not the court shall allow a general appearance to be withdrawn is discretionary with it.51 Where a party not served appears and files a plea, the withdrawal of the plea by consent of court does not withdraw his appearance.52 The fact that an attorney withdraws his appearance does not effect the withdrawal of defendant's appearance, or the pleading which the attorney has filed in his behalf.53 It is said that, if an attorney has erroneously entered an appearance for a party, it may be withdrawn, provided it is done in due time, before any step taken in pursuance of it, and without occasioning loss or prejudice to the other party. Where the defendant, by leave of

54

against a defendant who was never served with process, and whose appearance in the action was entered by an attorney without his knowledge or consent, may be enjoined. Mills v. Scott, 43 Fed. 452. See, also, for relief in chancery against unauthorized appearance, Anderson v. Hawhe, 115 Ill. 33, 3 N. E. 566; Sneed v. Town, 9 Ark. 535.

49 Foster, Fed. Pr. § 101; United States v. Yates, 6 How. (U. S.) 605; State of Rhode Island v. State of Massachusetts, 13 Pet. (U. S.) 23; Dana v. Adams, 13 Ill. 691.

50 Famous Mfg. Co. v. Wilcox, 180 Ill. 246, 50 N. E. 211.

1 Young v. Dickey, 63 Ind. 31; State of Massachusetts v. State of Rhode Island, 12 Pet. (U. S.) 755.

52 Mason v. Abbott, 83 Ill. 445; Dana v. Adams, 13 Ill. 691; Eldred v. Michigan Ins. Bank, 17 Wall. (U. S.) 545; Grigg v. Gilmer, 54 Ala. 425. 63 Mason v. Abbott, 83 Ill. 445. A solicitor who has entered an appearance for a party will not be allowed to withdraw it on his statement alone that he had no authority to appear, the defendant not disavowing the right to appear. Mallet v. Girard, 3 Edw. Ch. (N. Y.) 372. 54 Jones v. Orum, 5 Rawle (Pa.) 249. See Dillingham v. Barron, 6 Misc. Rep. 600, 26 N. Y. Supp. 1109; Forbes v. Hyde, 31 Cal. 342; Haslet v. Street, 2 McCord (S. C.) 311.

court, withdraws his appearance, the case stands as if there had been no appearance or pleadings filed.55

§ 174. Forms of appearance-General (in Illinois).

[Title of court and cause.]

To J. A. C., Clerk of said Court:

I hereby enter the appearance of A. B., defendant in the above-entitled cause, and of myself as his solicitor. E. F., Solicitor for Defendant A. B.

Dated January 10th, A. D. 1902.50

Special.

[Title of court and cause.]

Now comes J. N., who is named in the bill of complaint as one of the defendants in the above-entitled cause, and enters her special and limited appearance in this cause, for the sole purpose of objecting to the jurisdiction of the court, and moving to quash the alleged service, and for no other purpose; and, for grounds of said motion to quash said alleged service, said defendant shows to the court:

First. That the affidavit of nonresidence filed in said cause is insufficient, in that [state ground of insufficiency].

Second. That an unreasonable period of time elapsed between the making of the affidavit of nonresidence and the filing of the same in said cause.

Third. That the affidavit of nonresidence was subscribed and sworn to on the 19-, and that the same was not filed 19-.

until the

day of day of

Fourth. That the publication of notice in this cause is wholly insufficient, for the reason that [state ground of insufficiency], and confers no jurisdiction on this court over this defendant.

C. & F.,

Solicitors for Defendant, J. N.

J. N., Defendant.57

55 Carver v. Williams, 10 Ind. 260; Lennon v. Rawitzer, 57 Conn. 583, 19 Atl. 334; Baker v. Ludlam, 118 Ind. 87, 20 N. E. 648; Dana v. Adams, 13 Ill. 691; Graham v. Spencer, 14 Fed. 603; Michew v. McCoy, 3 Watts & S. (Pa.) 501. See Creighton v. Kerr, 20 Wall. (U. S.) 8; White v. Ewing, 37 U. S. App. 365, 69 Fed. 451; Day v. Mertlock, 87 Wis. 577, 58 N. W. 1037; Lodge v. State Bank, 6 Blackf. (Ind.) 557. For form of withdrawal of appearance, see Wilson v. Blakeslee, 16 Or. 45.

56 For forms of appearance considered by the courts, see Hoes v. Van Alstyne, 16 Ill. 384; Pignolet v. Daveau, 2 Hilt. (N. Y.) 584.

57 For forms of special appearance, see Thompson v. Greer, 62 Kan. 522, 64 Pac. 48; Lander v. Fleming, 47 Cal. 614; Tidwell v. Witherspoon, 18 Fla. 282.