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Appearance

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APPEARANCE. A coming into court as party to a suit, whether as plaintiff or de fendant.

The former proceeding by which a defend ant submits himself to the jurisdiction of the court. Tr. & H. Prac. 226, 271.

Appearance anciently meant an actual coming into court, either in person or by attorney. It Is so used both in the civil and the common law. It is indicated by the word "comes," "and the said C. D. comes and defends," and, in modern practice, is accomplished by the entry of the name of the attorney of the party in the proper place on the record, or by filing bali where that is required. It was a formal matter, but necessary to give the court jurisdiction over the person of the defendant. A time is generally fixed within which the de fendant must enter his appearance; formerly In Engiand and elsewhere, the quarto die post (q. v.). It the defendant failed to appear within this period, the remedy In ancient practice was by distress infinite when the injuries were committed without force, and by capias or attachment when the inju ries were committed against the peace, that is, were technical trespasses. But, until appearance, the courts could go no further than apply this pro cess to secure appearance. See PROCESS.

In modern practice, a failure to appear generally entitiee the plaintiff to judgment against the de fendant by default, if, of course, the court has ju risdiction of the cause.

It may be of the following kinds:— Compulsory.—That which takes place in consequence of the service of process.

Conditional.—One which is coupled with conditions as to Its becoming general.

De bene esse.—One which is to remain an appearance, except in a certain event. See DE GENE ESSE.

General.=—A simple and absolute submis sion to the jurisdiction of the court. See infra.

Gratis.—One made before the party has been legally notified to appear.

Optional.—One made where the party Is not under any obligation to appear, but does so to save his rights. It occurs in chancery practice, especially in England.

Spedal.—That which is made for certain purposes only, and does not extend to all the purposes of the suit; as to contest the jurisdiction, or the sufficiency of the service.

See infra.

Subsequent.—Au appearance by the de fendant after one has already been entered for him by the plaintiff. See Dan. Ch. Pr.

Voluntary.—That which is made in an swer to a subpcena or summons, without pro cess ; 1 Barb. Ch. Pr. 77.

How to be made.—On the part of the plain tiff no formality is required. On the part of the defendant it may be effected by making certain formal entries In the proper office of the court, expressing his appearance ; Zion Church v. Church, 5 W. & S. (Pa.) 215 ; Eas ton v. Altum, 1 Scam. (Ill.) 250 ; Griffin v. Samuel, 6 Mo. 50; Bennett v. Stickney, 17 Vt. 531; Rose v. Ford, 2 Ark. 26; Scott v. Hull, 14 Ind. 136; or in case of arrest, is effected by giving bail ; or by putting in an answer ; Livingston v. Gibbons, 4 Johns. Ch. (N. Y.) 94 ; Hayes v. Shattuck, 21 Cal. 51; President, etc., of Insurance Co. of North America v. Swineford, 28 Wis. 257; or a demurrer ; State v. People, 6 Pet. (U. S.) 323, 8 L. Ed. 414; Kegg v. Welden, 10 Ind. 550; or notice to the other side ; Livingston v. Gibbons, 4 Johns. Ch. (N. Y.) 94; or motion for continuance; Shaffer v. Trimble, 2 Greene (Ia.) 464; or taking an appeal; Wea ver v. Stone, 2 Grant (Pa.) 422; appearance and offer to file answer ; Tennison v. Tenni son, 49 Mo. 110 ; or motion to have an inter locutory order set aside; Tallman v. McCar ty, 11 Wis. 401.

A general appearance waives all question as to the service of process and is equivalent to a personal service ; Platt v. Manning, 34 Fed. 817 ; Continental Casualty Co. v. Sprad lin, 170 Fed. 322, 95 C. C. A. 112; Moulton v. Baer, 78 Ga. 215, 2 S. E. 471; Birmingham Flooring Mills v. Wilder, 85 Ala. 593, 5 South. 307; but it does not cure want of jurisdiction of subject matter ; Wheelock v. Lee, 74 N. Y. 495 ; St. Louis & S. F. R. Co. v. Loughmiller, 193 Fed. 689 ; a general ap pearance in a federal court waives the de fence that the defendant was not served in the district of which he was an inhabitant; Foote v. Ben. Ass'n, 39 Fed. 23; Betzoldt v. Ins. Co., 47 Fed. 705. A general appearance may be amended so as to make it special; Hohorst v. Packet Co., 38 Fed. 273.

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