44

not personally and by counsel. One sued by a wrong name may appear to the action by his correct name.45

§ 172. Authority to enter an appearance.

In order to constitute a voluntary appearance, the appearance must be by the party or some one duly authorized.48 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, 2 J. J. Marsh. (Ky.) 3; 1 Barbour, Ch. Pr. 80.

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, ǝ 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.

19

The court has power to allow a general appearance to be changed by amendment to a special appearance, or to be withdrawn. 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.54 Where the defendant, by leave of

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.

51 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. 1902.56

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.

§ 175. Appearance by corporations.

Corporations aggregate appear by a solicitor in the same manner as natural persons.58

§ 176. Appearance by married women.

In the absence of statute, where a bill is filed against husband and wife, the husband is bound to enter a joint appearance for himself and his wife; and if the husband only be served, and has notice that his wife is also a defendant, he must enter a joint appearance for himself and wife, otherwise an attachment will issue against him, even though he appear and answer the bill. If an appearance is entered for the wife, and she does not answer, an attachment will issue against both.59 Where the man's wife refuses to join with him in his defense, or lives separate from him, and is not under his influence or control, he may apply to the court by motion for leave to put in a separate answer from her. In all cases, after due service, process of contempt may be awarded against the husband for the default of the wife, unless an order be obtained to the contrary. If the bill be brought against husband and wife, for a demand against the separate estate of the wife, and the husband is abroad, and not amenable to the process of the court, a subpoena may be served upon the wife alone, and she must appear and answer the bill. The proper course is for the complainant to petition the court, upon notice to the wife, for an order that she appear and answer separately, and that, if her appearance be not entered within a specified time, an attachment issue. Whenever a married woman appears separately from her husband, she appears without a guardian, unless she is an infant. By stat

581 Barbour, Ch. Pr. 87.

60

591 Barbour, Ch. Pr. 82; Webster v. Threlfall, 1 Sim. & S. 136.

60 1 Barbour, Ch. Pr. 83; Dubois v. Hole, 2 Vern. 614; Bell v. Hyde. Finch, Prec. Ch. 328; Bunyan v. Mortimer, 6 Madd. 278; 1 Hoffman, Ch. Pr. 175, 176; Bushell v. Bushell, 1 Sim. & S. 164. A husband may appear for his wife, even where she is sued as executrix. Ch. Pr. 83; Bunyan v. Mortimer, 6 Madd. 278.

1 Barbour,

411 Barbour, Ch. Pr. 83; Hoffman, Ch. Pr. 174; 2 Newland, Ch.

utes in most jurisdictions, the ancient practice is abolished, and married women may appear as if they were unmarried.

§ 177. Appearance by infants.

As a general rule, an infant cannot appear or plead by attorney. His appearance is entered by his guardian ad litem, who is appointed by the court on petition for that purpose, and who is responsible for the propriety and conduct of the defense, and who may be removed if he does not do his duty.62 It is generally held that the appointment of a guardian ad litem for infant defendants, who have not been brought in by the proper service of process, is irregular and unauthorized. The question has arisen concerning the right to collaterally attack a decree rendered in a case where a guardian ad litem has been appointed without service of process on the infant. Such a decree, according to the better authority, is void. It is held in some cases that, where the interest of an infant in real property within the state is involved, a decree cannot be collaterally attacked, though rendered in a case where a guardian ad litem

64

021 Barbour, Ch. Pr. 85, 86; Russell v. Sharpe, 1 Jac. & W. 482; Clark v. Turner, 1 Root (Conn.) 200; Wainwright v. Wilkinson, 62 Md. 146; Wood v. Wood, 2 Paige (N. Y.) 108; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291. In England an infant entered his appearance without a guardian. 1 Hoffman, Ch. Pr. 171, citing 1 Fowler, Exch. Pr. 458. See supra, §§ 11, 155; post, § 318.

63 Walker v. Hallett, 1 Ala. 379; Price v. Crone, 44 Miss. 571; Linnville v. Darby, 1 Baxt. (Tenn.) 306; Sprague v. Haines, 68 Tex. 215, 4 S. W. 371; Ontario Bank v. Strong, 2 Paige (N. Y.) 301; Campbell v. Campbell, 63 Ill. 462; Westmeyer v. Gallenkamp, 154 Mo. 28, 54 S. W. 231.

64 New York Life Ins. Co. v. Bangs, 103 U. S. 435; Sloane v. Martin, 145 N. Y. 524, 40 N. E. 217; Phelps v. Heaton, 79 Minn. 476, 82 N. W. 990. There are some cases in which a judgment upon a personal demand has been sustained against collateral attack, though rendered in an action where the guardian ad litem had been appointed without previous service of process upon the infant; but they are exceptional, and there has generally been in them some circumstance which rendered any disturbance of the judgment likely to lead to great hardship and injustice. New York Life Ins. Co. v. Bangs, 103 U. S. 435; Bustard v. Gates, 4 Dana (Ky.) 429. See Manson v. Duncanson, 166 U. S. 533.