Jones v. Hunter ( 1840 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

This suit was instituted by the defendants in error against eight defendants, six of whom were served with process, and no return as to the other two. The judgment is general, against the “defendants” and this is assigned as error.

For the defendants in error it is insisted that the defendants below all appeared by attorney and filed their plea to the action, and thereby waived the want of service. If the parties not served with process did appear and plead to the action, the law is as stated; it will be only necessary therefore, to determine on the fact of their appearance. The plea is, “and the said defendants by their attorney come and defend, &c.” and this is the only appearance, except the entry of the judgment by the clerk, which recites that on another day, “came the parties by their attorneys, &c.” The language of the plea is appropriate, whether it be considered as applying to those who were served with process, there being several, or whether it be considered as applying to all of the defendants; but how is it to be legally construed?

Wherever there are more defendants than one, if they do not intend to plead jointly, it must appear that they severed, otherwise, if the language of the plea includes them all, it must be considered as a joint plea. And it is the duty of an attorney who appears for only part of the defendants, to plead in the names of those for whom he appears. If he undertakes to appear and plead for the whole, the parties who did not, as well as those who did employ him, are estopped by such appearance. If all the defendants had been served with process in this case, there can be no doubt but the appearance and plea as here entered would have extended to all. Want of service on two of the defendants cannot change the rule of construction; process is intended to bring the parties into court; to notify them of the existence of the suit, and they may come in without it. The appearance of the party is distinct from the process, for he may or may not appear after service; and whatever will amount to an appearance when process has been executed, will also be a sufficient appearance where it has not been executed. We have said that the appearance would have been sufficient if all had been served; it must also be held sufficient although two were not served. The attorney who filed the plea, either intended to plead for all, or he transcended his authority, and if he was unauthorised to appear for those not served, and they are injured by his conduct, they may have their recourse.

This case differs from that of Pitman & Gwin v. The Planters’ Bank, in which the plea was by Pitman alone, and there was no evidence of the appearance of Gwin, who was not served, except the entry by the Clerk, that “the defendants withdraw the plea by them pleaded.” This was held not to be an appearance. The entry was manifestly untrue, because the- defendants had not pleaded; Pitman alone had filed a plea. It differs also from the case of Moore v. Parker, 3 Littell, in which there was no evidence of the appearance of the party not served, except the memorandum of the clerk that “the parties came by their attorneys,” but no plea was filed by either party, and it was held that this entry did not amount to an appearance. Here an appearance is entered by an attorney whose authority is not to be questioned.

Judgment affirmed.