A withdrawal "without prejudice to the plaintiff" of a general
appearance entered by an attorney for the defendant means that the
position of the plaintiff is not to be unfavorably affected by the
Act of withdrawal; that all his rights are to remain as they then
stood. Hence where there has been error in the beginning of an
action, as
ex. gr., one of foreign attachment, by reason
of want of notice required by statute to be given to the defendant,
and an attorney appears generally for such defendant, and so cures
the defect, the advantage thus given to the plaintiff is not taken
away by a withdrawal declared to be "without prejudice" to him. And
the court states that it does not intend to intimate that the
result would have been different had the appearance been withdrawn
unconditionally.
The statutes of Colorado relating to attachments enact:
"SECTION 54. Whenever a plaintiff in any civil action pending in
any court of record in this territory shall file in the office of
the clerk of the court wherein such cause is pending, an affidavit
showing that the defendant resides out of this territory, it shall
be the duty of the clerk to cause a notice to be published in some
newspaper published in the county in which such cause is pending,
for four successive weeks prior to the next term of the court,
which notice shall set forth and state the title to the court in
which such action is pending, the nature of the action, and, if
such action shall be brought to recover money, the amount claimed
by the plaintiff, the names of the parties, and the time when and
the place where the next term of court in which such action is
pending will be held, and that if the defendants shall fail to
appear at the term of court and plead or demur, judgment shall be
entered by default. "
Page 87 U. S. 9
"SECTION 55. It shall be the duty of the plaintiff in all cases
in which such notice shall be published, in addition to such
publication, . . . if upon diligent inquiry the place where the
defendant may then be found can be ascertained, to send to such
defendant and to each of them, by mail, a true copy of such notice,
properly addressed to such defendant, at the post office nearest to
the place where such defendant may be found, at least thirty days
prior to the term of court mentioned in such notice."
This statute being in force, Kerr and another, in May, 1870,
sued Creighton in the District Court for Arapahoe County, in
Colorado Territory, in attachment. They filed an affidavit alleging
Creighton's nonresidence and that he owed them $5,563.
The sheriff returned that he had attached certain shares in the
Colorado National Bank belonging to Creighton, who was not
found.
The plaintiffs then filed their declaration, claiming
$8,000.
No notice of these proceedings was published as required by the
statutes.
Subsequently an entry was made in the court as follows:
"Now come the said plaintiffs, by Alfred Sayre, Esq., their
attorney, and the said defendant, by Messrs. Charles and Elbert,
his attorneys, also comes, and thereupon, on motion of said
plaintiff's attorney, the said defendant was ruled to plead ten
days from this date."
On the 19th of October the following:
"And now on this day come Messrs. Charles and Elbert and
withdraw their appearance as attorneys for the said defendant,
without prejudice to the plaintiff."
On the 27th of October, a judgment was entered reciting the
appearance, its withdrawal "by leave of the court and without
prejudice to said plaintiffs," and the defendant's failure to plead
according to the rule. Damages were assessed by a jury at $12,244.
A remittitur was entered for $4,244, and judgment taken for $8,000.
The supreme court affirmed this judgment, and the defendant brought
the case here.
Page 87 U. S. 10
MR. JUSTICE HUNT delivered the opinion of the Court.
In the view we take of this case, it is not necessary to examine
the alleged irregularities in the conduct of the suit or the
alleged defects in its commencement. Without intending in fact to
decide those points, it may be assumed, as is argued by the
plaintiff in error, that there was not that notice of the
proceedings required by the laws of Colorado.
Page 87 U. S. 11
It may be assumed also that in making a claim of damages for
$5,563 only in the writ of attachment, and in making a claim for
$8,000 in the declaration, an error was committed. It is insisted
that in consequence of this claim in the writ, the party would have
been justified in assuming that no judgment for a larger amount
would be taken against him, and that great injustice might have
been done to him. We do not find that the respectable counsel
claims that any injustice has actually been done.
But we are of the opinion that there has been no opportunity for
the commission of injustice. We find the facts in this respect to
be as follows:
After the execution of the writ of attachment, the plaintiff
filed his declaration claiming damages to the amount of $8,000,
giving the items of the claim. After this time,
viz., on
the 12th day of October, the defendant appeared in the suit by his
counsel, Messrs. Charles and Elbert. The appearance was general,
and "thereupon," as the record says, on motion of the plaintiff's
attorney, the defendant was ruled to plead in ten days.
Within the ten days, in which an order to plead had been entered
upon or upon the faith of or in consequence of their appearance,
the attorneys came into court and withdrew their appearance as
attorneys for the defendant without "prejudice to the plaintiff."
Leave to withdraw was granted upon this condition. Assuming the
rule to plead to have been effectual, as it manifestly would have
been had there been no withdrawal, and assuming that a failure to
comply therewith placed the defendant in default and entitled the
plaintiff to a judgment by
nil dicit, as would manifestly
have been the case had there been no withdrawal, the plaintiff and
the court held the action to be undefended, and a judgment was
entered for the plaintiff, with damages to be assessed by a jury to
be empanelled. The jury received evidence upon this subject, and
under instructions from the court rendered a verdict for $12,244.
The evidence is not returned in the record, as there was no
occasion that it should be, and there is no presumption of law
or
Page 87 U. S. 12
reason in fact to suppose that the verdict was for a larger sum
than was justly due to the plaintiff. For all in excess of $8,000 a
remission was made, and judgment was entered for that sum.
The leave to withdraw the appearance of the defendant's
attorneys was given upon the condition that it should be "without
prejudice to the plaintiff." This meant that the position of the
plaintiff was not to be unfavorably affected by the Act of
withdrawal. All his rights were to remain as they then stood.
A general appearance waives all question of the service of
process. It is equivalent to a personal service. The question of
jurisdiction only is saved. [
Footnote 1] If there was error in the commencement of this
action by reason of a defective notice or otherwise, it was cured
by the appearance.
This advantage, among others, was not to be impaired by the
withdrawal of the appearance.
A personal appearance by the defendant, through his attorneys,
converted into a personal suit that which was before a proceeding
in rem. This result had been worked when the appearance
was entered, and stood in full effect when the withdrawal was made.
Any judgment that he could then obtain against the defendant was
binding upon the defendant, indisputable and valid against him and
his property wherever he or it could be found. To reconstruct this
judgment and by means of a withdrawal of the appearance make it a
judgment to be enforced upon certain shares of bank stock only, and
liable to be reexamined as to that upon the personal application of
the defendant would produce an extremely unfavorable effect upon
the plaintiff's position. It would be a "prejudice" to him, and
hence it cannot be permitted.
A rule to plead had been served upon the attorneys. This
remained in force. At the expiration of the time to plead the
action was undefended, and a right to an interlocutory judgment at
once arose. To take away this right would be
Page 87 U. S. 13
an injury to the plaintiff. Hence, under the condition of no
prejudice, it remained good to him.
The appearance of the defendant may remain although the
attorneys, by whom it was entered, have withdrawn. Its effect
cannot be annulled by such withdrawal. The appearance gives rights
and benefits in the conduct of a suit, to destroy which by a
withdrawal would work great injustice to the other party. Such was
the case of
Eldred v. Bank, [
Footnote 2] where the defendant withdrew his plea,
claiming that the withdrawal left the case as though it had never
been filed, and that, never having been served with process, he was
not liable to a personal judgment. The court said:
"We do not agree to this proposition. The filing of the plea was
both an appearance and a defense. The withdrawal of the plea could
not have the effect of withdrawing the appearance of the defendant,
and requiring the plaintiff to take steps to bring him again within
the jurisdiction of the court. . . . He was not by the withdrawal
of the plea out of court."
None of the cases cited contain anything in hostility to these
views. As confirming them,
see Lawrence v. Yeatman,
[
Footnote 3]
Rowley v.
Berrian, [
Footnote 4]
Thompson v. Turner. [
Footnote 5]
Second. We do not intend by the argument thus advanced to
intimate that the result would have been different had the
appearance been withdrawn unconditionally, as was the case in
Eldred v. Bank.
The authorities upon this subject of a voluntary appearance are
cited in the case of
Habich v. Folger, recently decided in
this Court, [
Footnote 6] and it
is not necessary to do more than to refer to them as there
collected.
In the present case there was not a simple withdrawal, but it
was allowed upon the condition that it should be without prejudice
to the position of the plaintiff. We decide the case upon the facts
as they are presented, and
Page 87 U. S. 14
nothing would be gained by attempting to go beyond them.
Judgment affirmed.
MR. JUSTICE BRADLEY did not sit during the argument, and took no
part in this decision.
[
Footnote 1]
United States v.
Yates, 6 How. 605.
[
Footnote 2]
84 U. S. 17
Wall. 551.
[
Footnote 3]
2 Scammon 17.
[
Footnote 4]
12 Ill. 198.
[
Footnote 5]
22
id. 389;
see also the present case reported
in 1 Colo. 509.
[
Footnote 6]
The last preceding case.
