Yesler v. Oglesbee ( 1879 )

Opinion by

Greene, Chief Justice.

It seems to me that the defendant, by waiving service of the motion to perfect the transcript in this cause, without any accompanying protestation, that it was not his intention thereby to appear generally, has entered a general appearance.

The cause was a cause pending in this court from the date of perfecting the suit in error, and not from the day of filing a complete transcript; Section 461 of the Civil Practice Act fixes the date of perfecting the appellate proceeding.

From that date it was possible for the defendant in error to enter his appearance in the appellate court. This he would effectually do by filing, or causing to be filed, any paper in the cause, other than his brief unless he expressly disclaimed, at the time, his intent to enter an appearance.

The only reason why filing his brief, would not be an appearance is because the practice of this court has been settled otherwise.

The defendant, in my opinion, in giving the plaintiff a written waiver of service of the motion to perfect the transcript, authorized the plaintiff to file the waiver in this cause as a basis of urging the argument of the motion, without actual service of the motion, on the defendant, personally.

This, I regard, as an appearance generally.

Such an appearance, under former rulings of this court, precludes the defendant from moving now to dismiss.

The motion to dismiss should therefore be denied.