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a hitherto unknown defence, which will be so far fatal to the plaintiff's action, the latter may be allowed to discontinue without costs. Wellington vs. Classon, 18 How., 10; 9 Abb., 175; Waterbury Leather Manufacturing Company vs. Krause, 9 Abb., 175, note But where such defendant has really no interest which needs protection, the appearance will be a nullity, and the court will not recognize it. Tracy vs. Reynolds, 7 How., 327.

As to the effect of an unauthorized appearance, and as to when it will or will not be effectual to sustain consequent proceedings, see Bogardus vs. Livingston, 7 Abb., 428; Williams vs. Van Valkenburg, 16 How., 144; Binney vs. Le Gal, 19 Barb., 592; 1 Abb., 283; Blodgett vs. Conklin, 9 How., 442:

As before stated, any act on the part of the defendant acknowledging that the court has general jurisdiction of the controversy, or invoking the exercise of that jurisdiction, will, unless a special reservation be made, amount to an appearance, and be equivalent to a regular notice.

Thus, the service of a notice of motion in the cause, signed by the attorney for the defendant, has been held to amount to a notice. Kelsey vs. Covert, 16 How., 92; 6 Abb., 336, note. Or, an appearance and argument upon a motion for an injunction. Cooley vs. Lawrence, 5 Duer, 605; 12 How., 176. Or, the obtaining and service of an order extending the time to answer. Quin vs. Tilton, 2 Duer, 648. See, likewise, citation in the previous section.

And the signature of a notice of motion by the attorney, in general terms, may have the effect of a general appearance, as regards the waiver of technical defects.

To secure the right to make a motion on that ground, the signature to the notice should be special, and should expressly state that the appearance is restricted, and for the purposes of the motion only. Dole vs. Manley, 11 How., 138; Baxter vs. Arnold, 9 How., 445. See, however, the more liberal doctrine upon this subject, to the effect that an ordinary notice of appearance served with motion-papers on the ground of irregularity, must be held as a notice only for the purposes of the motion, as held in Bierce vs. Smith, 2 Abb., 411.

There can be no doubt, but that the more prudent and proper course will be to add a special and limited form of signature to every notice given under such circumstances.

Duly given, an appearance entitles the defendant, under section 414, to the usual notices of all ordinary proceedings in the cause, whether he defend or not. Saltus vs. Kip, 5 Duer, 646; Walsh vs. Kiershadt, 8 Abb., 418. But not, it would seem, to those which are not ordinary proceedings in the cause, such as an ex parte application for an injunc

tion. Becker vs. Hagan, 8 How., 68. It effects, on the other hand, a complete submission to the jurisdiction, so far as personal objections are concerned. Dart vs. Farmers' Bank of Bridgeport, 27 Barb., 337. And, as regards the summons, it is equivalent to a personal service, so as to entitle the plaintiff to take judgment by default, if not followed up in due time by the service of an answer. Section 139.

It is, of course, equally competent for a party to give notice of appearance in person, if he so think fit. Whether so given, or given by the attorney, the residence of the party, or the place of business of the attorney, should, in all cases, be indicated upon the face of the notice, in order to entitle him to service of papers in the usual manner, and not by mail. See rule 10 (5).

(a.) DEMAND OF COPY OF COMPLAINT.

Thus far the subject of appearance has been treated in its general aspect, and as applicable to all cases in common, whether the complaint has, or has not, been served with the summons.

When the summons has been served alone, the notice should be accompanied by a demand of a copy of the complaint. This proceeding is expressly provided for by section 130. It usually accompanies and forms part of the ordinary notice of appearance. It must be in writing, and must specify a place within the state where such copy may be served. Where the defendant appears by attorney, the latter is, of course, the proper party to make it (see section 417). See Mercier vs. Pearlstone, 7 Abb., 325.

The demand must, under section 130, be made within twenty days after service; whether at the outset or the close of that period, is, of course, a question of expediency. If it be wished to gain time, service on the last day will, of course, involve a corresponding delay of the period at which the plaintiff will be entitled to claim an answer, or to take judgment.

In case the plaintiff complies with the demand, and serves the copy, the defendant's time to answer runs from the date of that service, without regard to the original service of the summons. It is clearly, therefore, his interest to do so, as speedily as possible. An attorney, representing several defendants, is entitled to only one copy (see section 130).

Under the Code of 1849, this proceeding could only be taken within ten days after service, and service of the complaint after that time was not obligatory, nor was any time limited within which the copy demanded was to be served. On the amendment of 1851, these defects were remedied. See, as to the practice previous to that amendment, Bennett vs. Delliker, 3 C. R., 117; Engs vs. Overing, 2 C. R., 79;

Littlefield vs. Murin, 4 How., 306; 2 C. R., 128; Walrath vs. Keller, 2 C. R., 129; Ecles vs. Debeand, 2 C. R., 144; Colvin vs. Bragden, 5 How., 124; 3 C. R., 188; Munson vs. Willard, 5 How., 263; 3 C. R., 250; Luce vs. Trempert, 9 How., 212. See also, as to a supposed necessity of filing the complaint within the twenty days allowed to answer, Tuomey vs. Shields, 9 L. O., 66.

A general notice of appearance, requiring all papers in the action to be served on the attorney appearing, has been held to be a sufficient demand of a copy of the complaint. Walsh vs. Kiershadt, 8 Abb., 418. It is essential that a defendant, if not served at the outset, should make such a demand before preparing his answer. If he assumes to do so without knowledge of the contents of the complaint, it will be irregular, and a fraud upon the court. Phillips vs. Prescott, 9 How., 430. In that case the complaint was actually not drawn at the time. Where drawn and filed, so that the defendant may acquire actual knowledge of the contents, it seems as if this rule could scarcely apply.

Where two demands are made by the same attorney, the first served will govern the time within which service of the complaint will be necessary. Luce vs. Trempert, 9 How., 212.

After demand made by the attorney, service upon the party will be wholly irregular; and this rule holds good also as to an amended complaint. Mercier vs. Pearlstone, 7 Abb., 325.

The provisions of section 130, only apply to cases where the summons has been personally served. Where it has been published, the defendant cannot make a demand of this description. His course is to apply to the court for an order for service and time to answer. Mackay vs. Laidlaw, 13 How., 129.

A voluntary service of the complaint by the plaintiff, not accompanying the summons, but subsequently, in connection with other proceedings, will, it seems, be of no operation in extending the defendant's time to answer, or preventing the plaintiff from entering up judgment, at the expiration of twenty days from the original service. Van Pelt vs. Boyer, 7 How., 325.

Of course, if any objection exists to the summons, or on the ground of deficient service, the defendant's attorney must not give notice of appearance, until the question shall have been decided. See last section, and cases there cited. If, pending the motion for that purpose, the time for answering should be drawing out, he may apply for a stay of all proceedings until a decision of the motion, and some reasonable time after, but without prejudice to the questions raised upon the motion. Such an order as this would doubtless be held not to be a recognition of the validity of the plaintiff's proceedings.

161. Motions Consequent on or Preliminary to Appearance.

(a.) MOTION ON GROUND OF DEFECTS IN SUMMONS.

This proceeding must of necessity precede a general, or be accompanied by a qualified appearance or notice, specially stating that the attorney acts for the purpose of the motion only. The omission of this precaution will, as before noticed, be fatal to the application.

This will be the proper form of proceeding to raise the objection, either that the summons is irregular upon its face, or that it has been imperfectly or irregularly served. Nones vs. Hope Mutual Insurance Company, 8 Barb., 541; 5 How., 96; 3 C. R., 161; Van Rensselaer vs. Chadwick, 7 How., 297.

So also where the service has been fraudulently effected. Bulkeley vs. Bulkeley, 6 Abb., 307.

Subsequent receipt and retention of the summons may, however, if brought home to the defendant, have the effect of defeating the motion. Wallis vs. Lott, 15 How., 567. So also may the form of the defendant's application, if too broadly made, or in a manner which amounts to a recognition that he has been effectually brought into court. Vide Allen vs. Allen, 14 How., 248; Dole vs. Manly, 11 How., 138.

(b.) MOTION TO DISMISS FOR WANT OF SERVICE.

If, after demand made, the plaintiff fail to serve his complaint in due time, the defendant will be entitled to move for a dismissal of the action on proof of such demand made, and of non-compliance within the prescribed period.

Service within that period, is, under the present measure, absolutely obligatory; the word "must," having been substituted on the amendment of 1851, for "may," employed in the measure of 1849. The defendant's attorney will not be bound to accept service of a copy, served after the time has elapsed. Mandeville vs. Winne, 5 How., 461; 1 C. R. (N. S.), 161. He is entitled to give his notice of motion to dismiss, immediately the plaintiff is in default in this respect; and, if the copy be served after that notice, the not returning it immediately will not be considered as a waiver of the objection. Baker vs. Curtiss, 7 How., 478. If, however, the complaint had been served before such notice, and had been either retained or returned by the defendant's attorney, without giving notice of the objection to receive it, it was considered, in the same case, that the docrine of waiver might have been applied.

See last section and cases there cited, as to when the right of a defendant, not served, to appear voluntarily, will or will not be recognized.

If he does so unnecessarily he cannot make a motion of this description. See Tracy vs. Reynolds, 7 How., 327, there referred to.

A similar motion was recognized under the section, as it stood before the amendment of 1851, fixing a definite period, the only question being as to what would or would not be a reasonable time for such service after demand. The period of twenty days, now fixed by the amendment, was, in the majority of those cases, fixed as being the most reasonable. See Littlefield vs. Murin; Walrath vs. Killer; Ecles vs. Debeand; Colvin vs. Bragden, and Munson vs. Willard, cited in last section.

In the cases last alluded to, a "locus pœnitentia" was given to the plaintiff. Under the present measure that privilege can no longer be depended upon, and, therefore, special care should be taken by the plaintiff to complete and serve his complaint within the twenty days, in all cases. If he cannot do so, he should, on no account, omit to apply to the court for an order extending the time allowed, and this application should be made before the time in question has expired. If this precaution be neglected, the order cannot afterwards be obtained ex parte, or, if obtained, will be set aside. Stephens vs. Moore, 4 Sandf., 674.

As to the motion on this ground falling properly within the powers of the court, to dismiss, for want of due prosecution, as conferred by section 274, see Colvin vs. Bragden and Baker vs. Curtis, above cited.

The effect of service by mail on the fixing of time for a service of this nature, must not, of course, be lost sight of. If the demand be served by mail, it will probably be held to have the usual effect of doubling the plaintiff's time for service of a copy pursuant to such a demand.

The motion for this purpose must be made in the district, or in a county adjoining that in which the summons states the complaint will be filed. That county will be presumed to be the county of venue. Johnston vs. Bryan, 5 How., 355; 1 C. R. (N. S.), 46.

(c.) MOTIONS ON GROUND OF DEFECTS IN SUMMONS AND COMPLAINT. When the complaint is served in pursuance of demand, as above, or where it has been served with the summons in the first instance, this class of motions will be appropriate, and the present will be the proper time for making them.

The objection on the ground of the misnomer of defendant will properly be taken in this form, by motion to set aside the summons and complaint, and not by answer, the proceeding being in the nature of the former plea in abatement. Elliott vs. Hart, 7 How., 25. See also Gardiner vs. Clark, 6 How., 449, there referred to. Dole vs. Manley, 11 How., 138. In Miller vs. Stettiner, however, 22 How., 518, it was considered that a motion of this nature was not, and that a plea in

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