Grigg v. Gilmer , 54 Ala. 425 ( 1875 )

BRICKELL, C. J.

An appearance is a submission to the jurisdiction of the court, in obedience, or in answer to process. Though we have a rule of practice, prescribing particularly, the mode in which the appearance shall be entered, and thereby made known to the court and to the opposing party and counsel, the rule is but seldom, if ever, observed. The entry on the margin of the dockets of the court of the • name of an attorney, opposite to the name of a party to a ■ suit, is accepted in practice as an appearance for such a party. The consequence resulting from an appearance thus made, may be limited by the steps taken, or the pleadings interposed subsequently. If these refer to, and are for the purpose of vacating an irregular service of process, or for showing to the court there has been no service of process, or, for taking advantage of defects in the process, on error or appeal, such an appearance will not be deemed a general appearance, curing such irregularities or defects. — Lecatt v. Salle, 1 Port. 287; Nabors v. Nabors, 2 Port. 162; Wilson v. Outlaw, Minor, 196; Lampley v. Beavers, 25 Ala. 534.

A judgment by default is, in our practice, a judgment for the want of an appearance. It is distinguished from other judgments by the recital, “the defendant being called, came not but made default.” An appearance in a civil suit at law is purely voluntary. No process can issue to compel it, nor can the plaintiff, in any event, enter it for the defendant. A defendant may decline to make it, incurring no other consequence than an admission of the plaintiff’s cause of action, as averred in -the complaint, and a judgment against him on such admission.- — McGehee v. Childress, 2 Stew. 506. The judgment can never be entered if there is an appearance, unless the defendant has filed an affirmative plea, and does not subsequently appear to sustain it. If there is an appearance, and a failure to plead, a judgment nil dicit, not a judgment by default, must be rendered. — Stewart v. Goode, 29 Ala. 476. Or, if the defendant appears, and subsequently withdraws his appearance, making“no further defense,” nil dicit is the proper judgment. — Summerlin v. Dowdle, 24 Ala. 428. So, when there is an appearance, and a motion to quash the summons as irregular, which is overruled and no further defense is made, a judgment nil dicit is proper. — Eaton v. Harris, 42 Ala. 491. The appearance of the defendant, and the subsequent withdrawal of a plea filed, is properly followed by a judgment nil dicit. — Kennedy v. Young, 25 Ala. 563.

The plea in abatement filed by the defendant, because of the insufficiency of the affidavit on which the attachment issued, was an appearance; for until an app'earance is effected, there can be no pleading. — Stephen on Plead., Appendix xxii; 1 Chit. PL 427; Stephens v. Arthur, Salk. 544. The judgment on this plea, if in favor of the plaintiff, on issue found, would have been final, leaving nothing more to be done than an assessment of the damages, if the action sounds in damages. — Jones & Co. v. Donnell, 9 Ala. 695. If a demurrer had been interposed and sustained, the judgment would have been respondeat ouster. — Massey v. Walker, 8 Ala. 167. If, on demurrer, or on issue found, the judgment had been for the defendant, it would have been final, that the writ be quashed, and the defendant go hence, and recover costs. A plea on which a final judgment may be rendered is, of necessity, an appearance.

It is insisted, however, for the appellee, the withdrawal of the plea in abatement remitted the cause to the condition in which it was before the plea was filed. We cannot assent to the proposition. It is not in accordance with our former decisions, and would operate to the prejudice of the plaintiff, who, by its withdrawal, has been deprived of the opportunity of testing the truth or sufficiency of the plea, and obtaining a judgment which would have been .final, or of respondeat ouster, compelling a plea in bar. For, no subsequent plea in abatement, or dilatory plea, could have been interposed.- — • Houck v. Scott, 8 Port. 161. The withdrawal of the plea was the voluntary act of the defendant, which the plaintiff could not prevent. It was either a confession of its insufficiency, or a waiver of the matter of defense it contained. Whether tbe 0116 or tbe other tbe defendant was before tbe court, and fading to plead further, a judgment for tbe want - of a plea, which is a judgment nil dicil, was tbe proper judgment. That was tbe judgment originally entered, and in its amendment, so as to convert it into a judgment by default, tbe court erred. For tbe error tbe judgment must be reversed and tbe cause remanded.