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2. — exception in case of executors and administrators.] -- The New York statutes provides that the first of several executors or administrators who is served with process or appears, must answer, and separate answers cannot be allowed without leave of court. But a person who is sued both individually and as an executor, or administrator, may appear by a separate attorney in each capacity.97
3. What may be done before appearance.]-A defendant may through the medium of an attorney, obtain extensions of time to plead by stipulation, or may obtain an ex parte order therefor, before service of a notice of appearance. It is not necessary to serve a notice of appearance with such order extending time in order to prevent a judgment upon default in appearance.99
4. Power of the court as to appearance.]— The court have the same power in respect to voluntary appearances that they have.in respect to other steps in the action generally. They may extend the time to appear, and this is a necessary incident of an extension of the time to plead. And they may strike out an unauthorized ? or an illusory or false appearance, if injury will result.“
So the court may relieve a defendant on whose behalf appearance has been made under mistake on the same principles on which they may relieve from a stipulation or admission."
An appearance cannot be withdrawn except by leave of court.
96 N. Y. Code Civ. Pro., 8 1817. If one of several executors enters an appearance, all are bound. Montgomery r. Boyd, 78 App. Div. 64, 79 N. Y. Supp. 879, 1 Anno. Cas. 407. See also Salters v. Pruyn, 15 Abb. Pr. 24.
97 Roche v. O'Conner, 95 App. Div. 496, 88 N. Y. Supp. 968.
98 Paine Lumber Co. r. Galbraith, 38 App. Div, 68, 55 N. Y. Supp. 971; Benedict v. Arnoux, 38 N. Y. Supp. 882.
99 Littauer 1. Stern, 88 App. Div. 274, 85 N. Y. Supp. 71; aff'd, 177 N. Y. 233.
1 See Extensions of Time, p. 48 of this volume; Littauer t. Stern, 177 N. Y. 233.
2 Nordlinger v. De Mier, 7 N. Y. Supp. 463, 18 Civ. Pro. 47. As to effect of unauthorized appearance, see 75 Am. Dec. 146; Washbon 1. Cope, 144 N. Y. 287; Vilas v. Plattsb., etc., R. Co., 123 N. Y. 440, 19 Civ. Pro. 333.
3 Edell v. Cave, 51 L. T. R. (N. S.) 621, 33 Wkly. Rep. 208 (Chan. Div. 1884).
But striking out an appearance already made in a U. S. District Court, was held to recall the notice to the defendant, and make subsequent proceedings against him inoperative in Windsor v. McVeigh, 93 U. S. 274.
4 Brower v. Kahn, 76 Hun, 68, 27 N. Y. Supp. 592.
5 Hunt v. Brennan, 1 Hun, 213; Dillingham v. Barron, 6 Misc. 600, 26 N. Y. Supp. 1109.
6 Galt v. Provident Savings Bank, 18 Abb. N. C. 431; see, also, cases cited in note to Form 444.
5. Formal appearance.] — To secure the clear right to notice of proceedings in the cause, the only safe practice is to serve a formal notice of appearance, or a demurrer, or an answer; in this way only is the general appearance made." A special appearance may be made in a different manner, as the Code section does not apply.8
Service of a notice, as, a notice of motion, although it does not state that the attorney appears specially, does not constitute such a formal appearance.
6. Voluntary general appearance as giving jurisdiction.]-Voluntary general appearance, by a person sui juris,10 is always, except in divorce," equivalent to personal service ;12 its effect cannot be limited by either client or attorney.13
Hence it may convert a proceeding in rem into a personal suit.1
Where a party does not desire so submit himself to the jurisdiction of the court, he must appear specially for the purpose of raising the question of jurisdiction by motion; or, he may allow plaintiff to go on, and attack the judgment when entered.15
7. — informal.] — For the purpose of giving jurisdiction, informal appearance is just as effective as a formal notice. The appearance described in N. Y. Code, $ 421, relates to appearance after service of summons, and does not refer to the voluntary
7 N. Y. Code Civ. Pro., § 421; Valentine v. Myers' Sanitary Depot, 36 Hun, 201; Douglas v. Haberstro, 8 Abb. N. C. 230; Wood v. Furtick, 17 Misc. 561, 40 N. Y. Supp. 687; Stokes v. Schildknecht, 85 App. Div. 602, 83 N. Y. Supp. 358.
8 Cutting 1. Jessmer, 101 App. Div. 283, 91 N. Y. Supp. 658.
9 Valentine r. Myers' Sanitary Depot, 36 Hun, 201 (motion to make complaint more definite); Wood v. Furtick, 17 Misc. 561. 40 N. Y. Supp. 687 ito vacate attachment); Cohen v. Levy, 27 Misc. 330, 58 N. Y. Supp. 721 (to cancel lis pendens); Noble v. Crandall, 49 Hun, 474, 2 N. Y. Supp. 265 (to set aside service of summons).
10 An infant must be served, and cannot voluntarily appear.
11 By N. Y. Gen. Rules No. 72, notice of appearance and retainer in divorce cases does not excuse proof of service of the summons and complaint, upon application for a reference.
12 Reed v. Chilson, 142 N. Y. 152; N. Y. Code Civ. Pro., & 424; 3 Moak's Eng., 483, 489. Contra, McCormack v. First Nat. Bank of Greensburgh, 53 Ind. 466, holding that a written appearance and waiver of process signed by defendant out of court was not enough, but that formal appearance in court or by attorney is necessary.
13 Lederer v. Lederer, 47 Misc. 471. 14 Creighton v. Kerr, 20 Wall. 8, 12. 15 Reed v. Chilson, 142 N. Y. 152.
submission to the jurisdiction which may be manifested in many different forms. In general, the act of an attorney for defendant, in taking any step in the cause, either in writing or orally in
open court, is an appearance for the purpose of giving the court jurisdiction of the person ;47 but mere presence in the court-room to watch the proceedings is not ;18 nor is taking a step in the cause founded on and expressly restricted to an objection to jurisdiction, such as moving to set aside the proceedings. But where defendant institutes a proceeding which has for its basis the existence of an action to which he must be a party, he thereby submits himself to the jurisdiction of the court, in spite of any disclaimer he may make upon the record. 19
So, signing without qualification upon a paper served, “ attorney for defendant,” admits the jurisdiction of the court.20
16 People r'. Cowan, 146 N. Y. 348. See, also, Paine Lumber Co. v. Galbraith, 38 App. Div. 68, 55 N. Y. Supp. 971, 29 C'iv. Pro. 99.
17 Goldstein v. Goldsmith, 28 Misc. 569, 59 N. Y. Supp. 677 (application to defer entry of judgment and for leave to answer; held, a submission to jurisdiction which waived service of summons).
Hills 6. Ross, 3 Dal. 331. (A plea in admiralty by a partner“ in behalf of himself and his copartners," and a rejoinder signed by a proctor for the defendants,” held a legal appearance of all the defendants.)
First Nat. Bk. of Mauch Chunk 1. l'. S. Encaustic Tile Co., 105 Ind. 227. 4 N. E. Rep. 846. (Filing answer admitting allegations of complaint, and appearance before judge sitting in chambers in vacation in action for appointment of receiver of corporation, held equivalent to service.)
So too, by the bringing of his action, plaintiff " appears" in the action, and hence may be subjected to supplementary proceedings on a judgment against him for costs. Davis v. Jones, 8 N. Y. Civ. Pro. Rep. 43.
But employing an attorney and paying him to attend to the taking of depositions pursuant to notice served on party employing him (in a case where they were not taken, however, before the judge or clerk of the court in which the cause was depending) was held not equivalent to a voluntary appearance in Bentz v. Eubanks, 32 Kans. 321, 4 Pac. Rep. 269.
So a motion after judgment to set aside the judgment and grant a new trial, such motion being made after the court had adjourned for the term, and never being acted on by the court, held not to operate as a submission to the jurisdiction of the appellate court. Todd v. De La Mott (Colo. 1886), 11 Pac. Rep. 90. And a written admission of service by the defendant himself without attorney is not equivalent to a voluntary appearance. Matter of Kimball, 155 N. Y. 62; Butterworth v. Hill, 114 U. S. 128, where it was so held when given without the jurisdiction.
18 Luhrs 1. Commors, 13 Abb. N. C. 88, 30 Hun, 468; Tiffany r. Gilbert, 4 Barb. 320.
19 Farmer r. Nat. Life Assoc., 138 N. Y. 265 (removal by defendant to Federal Court, but remanded; defendant then moved to set aside service of summons); contra, Golden r. Morning News, 156 U. S. 518.
People v. Cowan, 146 N. Y. 348 (submission to jurisdiction held to be involved in execution of a recognizance; a judgment upon which could be entered after an order of forfeiture). Jones V. Jones, 108 N. Y. 415.
20 Phelps r. Phelps, 6 Civ. Pro. Rep. (Browne) 117 (so holding of an indorsement on motion papers attacking the jurisdiction itself).
An attorney cannot, as such, safely correspond with his adversary about the cause without distinctly disavowing intention to appear, for he may slip into an inadvertent notice of appearance which may give the court jurisdiction of his client's person.
Hence an unqualified appearance by attorney, though informal, waives the objection that the court has not acquired jurisdiction of the appearing defendant.22 And an appearance is a sufficient answer to an objection on his part to any irregularity in the summons, whether it be misnomer,23 or in not directing the writ to a proper officer for service,24 or in the statement contained in it as to the nature of the cause of action or relief,25 or as to the time for answering, or in the manner of service, 27 or the omission to make service, 28
Of course the rules here stated have no application to a situation where neither a proper service of the summons nor an appearance would confer jurisdiction of the subject-matter upon the court.?
8. Special appearance.] -As already stated,30 a special appearance may be made for the purpose of objecting to the jurisdiction ; 31 but if the appearance is for any other purpose also, it waives the objection to jurisdiction of the person, although that objection be expressly made at the same time. 32 So, if the special
21 Pignolet v. Daveau, 2 Hilt, 584: Livingston r. Woolsey, 4 Johns. Ch. 365. Compare Matter of Kimball, 155 N. Y. 62.
22 Taylor v. Longworth, 14 Pet. 172; Shields v. Thomas, 18 How. U. 8. 253: Kerr v. Walter, 104 App. Div. 45, 93 N. Y. Supp. 311.
23 Brooks v. Farmers' Creamery Assoc., 21 Wkly. Dig. 58 (case of suit by joint-stock association wrongly brought by omitting to name president or treasurer as plaintiff); Dole v. Manley, 11 How. Pr. 138.
24 Knox v. Summers, 3 Cranch. 496.
26 Quinn v. Middlesex Electric Light Co., 140 Mass. 109, 3 N. E. Rep. 204, and cases cited (length of notice of appearance for license); Newetty v. Naylor. 100 N. Y. 562.
27 Bank of Valley v. Bank of Berkeley, 3 W. Va. 386; Williams r. Bruce, 3 Wis. 773 (service by publication).
28 Pomeroy v. Ricketts, 27 Hun, 242; Catlin v. Ricketts, 91 N. Y. 668.
31 And if made for that single purpose, as disclosed by the moving papers, it is not to be held a general appearance because the attorney does not qualify his appearance as special. Noble v. Crandall, 49 Hun, 475, 2 N. Y. Supp. 265, 15 Civ. Pro. 265. Compare Phelps r. Phelps, 6 Civ. Pro. 117.
32 Jones v. Andrews, 10 Wall. 327, 332, holding that appearing for the purpose of moving for a dismissal, both for want of jurisdiction and for want of equity. is a waiver of an objection for want of jurisdiction of the person.
Elliott v. Lawhead (Ohio), 1 Northeast. Rep. 577. (Motion to object that the court had no jurisdiction over the defendant as a married woman to grant
appearance for the purpose of attacking the service of the summons, is followed by a general appearance after a denial of the motion to set side service, and an appeal from the order will be dismissed; or if followed by such act as under the statute law of the state is an appearance and submission to jurisdiction. 34
9. - extension or stay pending special appearance.] - Obtaining an order or stipulation extending time35 or stay of proceedings,36 where the object is expressed to be incidental to a motion upon special appearance to set aside the summons or its service, is not a waiver of the jurisdictional objection on which the motion is founded; the court should, on application, extend the defendant's time to appear generally and plead, pending an appeal from a denial of his motion to vacate service.37
FORM No. 437.
Notice of appearance by attorney.38 [Title of court39 and cause.to]
Please take notice that the defendant [or, defendants-if one or more, but not all of several defendants,49 name them; if a defend
the relief prayed for, held, an appearance equivalent to service, as the objec tion was not confined to want of proper service.)
Lynde v. Lynde, 162 N. Y. 405, aff’g 41 App. Div. 280, 58 N. Y. Supp. 567 (appearance, in opposition to motion to amend a decree obtained on substituted service, where both the question of jurisdiction and of the merits is litigated, operates as a general submission to jurisdiction).
33 Woodruff v. Austin, 16 Misc. 543, 37 N. Y. Supp. 22.
34 Jones v. Jones, 108 N. Y. 415 (despite an averment in his answer of lack of jurisdiction of his person).
35 Thomas v. Jones, 3 Monthly L. Bul. 36.
36 Brett v. Brown, 13 Abb. Pr. (N. S.) 295. In Upper Miss. Co. v. Whittaker, 16 Wis. 220, it was held that the reservation of the objection to jurisdiction, made by a special or qualified appearance, is waived by the objector's causing to be inserted in the order against him a stay of proceedings; but the better view is that there is no waiver, and that the court have power to stay proceedings until the question of jurisdiction has been determined.
37 Everett v. Everett, 22 App. Div. 473, 47 N. Y. Supp. 994.
38 Sustained by Dyer v. North, 44 Cal. 157. Such an appearance by a party sui juri dispenses with neces. sity of service of process.
Even though it be a corporation. Attorney. General r. Guardian Mut. Life Ins. Co., 77 N. Y. 272. And if it be one dissolved by appointment of a ceiver, appearance by its attorney and the attorney of the receiver are sulficient for this purpose. An infant must
be served with summons. Ingersoll 0. Mangam, 84 N. Y. 623.
39 Mistake in naming court may be waived. Barnum v. Merchants Fire Ins. Co., 97 N. Y. 188.
40 Need not name all of numerous parties, but only enough to unmistakably identify the cause.
4i As to policy of separate appear. ances, with reference to question of costs, see Lane v. Van Orden, 11 Abb.