Childers v. Lahann.

• Decision Date: 10 January 1914
• Citation: 138 P. 202,18 N.M. 487
• Parties: CHILDERSv.LAHANN.
• Court: New Mexico Supreme Court

18 N.M. 487

138 P. 202

CHILDERS

v.LAHANN.

Supreme Court of New Mexico.

Jan. 10, 1914.

Syllabus by the Court.

An appearance in practice is a coming into court as a party to a suit, whether as plaintiff or defendant, and is a formal proceeding by which a defendant submits himself to the jurisdiction of the court.

The question as to whether a party has appeared and submitted himself voluntarily to the jurisdiction of the court should be tried by the record, and not by other evidence.

When a party takes an appeal in open court, he must see that the record affirmatively shows that it was taken in open court, and, where the record is silent upon the question, the presumption is that the appeal was not so taken, and in such case it is incumbent upon appellant to cause citation to be issued and served upon appellee.

Where good cause is shown for the failure to cause citation to be issued and served upon appellee as, and within the time, required by statute, the appellate court can extend the time for serving the citation, and will permit a citation to be issued and served at any time before the end of the term of the appellate court to which the appeal was properly returnable.

Appeal from District Court, Lincoln County; Medler, Judge.

Action by Carrie M. Childers, individually and as executrix of the estate of William B. Childers, against Adolph J. Lahann. From judgment for defendant, plaintiff appeals, and defendant moves to dismiss the appeal. Motion denied, and plaintiff given right to sue out and serve citation.

Letters which passed between the attorneys held not to constitute an “appearance.”

E. W. Dobson, of Albuquerque, for appellant.

John Y. Hewitt, of White Oaks, and E. C. Wade, Jr., of Santa Fé, for appellee.

ROBERTS, C. J.

The order granting an appeal in this case was signed by the district judge on the 16th day of June, 1913. No extension of time to perfect the appeal was asked for or granted; hence the return day was 130 days thereafter. Section 2, c. 120, S. L. 1909. The transcript of the record and assignments of error were filed in due season; but citation was not issued and served upon the appellee as required by section 2, c. 57, S. L. 1907. Because of appellant's failure so to do, appellee, by special appearance, moves the dismissal of the appeal.

Section 2, c. 57, supra, in so far as material, reads as follows: “When an appeal is taken, unless the same is taken in open court, which fact shall be shown by the record, citation shall be issued by the clerk of the district court directed to and citing the opposite party to appear in the Supreme Court and answer such appeal on the return day thereof.” The section further provides how such citation shall be served.

Appellant admits that no citation was issued or served upon appellee; that the return day was October 25, 1913. But she resists the motion to dismiss the appeal, on the ground that appellee has entered a general appearance in the case in this court. The issuance and service of citation is waived by the voluntary appearance of the appellee or defendant in error. Dailey v. Foster, 128 Pac. 71. The claim of appellant is not based upon any formal entry, plea, motion, or act of the appellee shown by the records of this court, but is founded solely upon a letter received by her attorney from one of appellee's attorneys and the reply of her said attorney thereto. The letters are as follows:

“El Paso, Texas, Nov. 2, 1913.

E. W. Dobson, Albuquerque, N. M.--Dear Mr. Dobson: Your letter of the 28th ult. was forwarded to me here, and I wish to thank you for the offer to extend courtesies in case of Childers v. Lahann. If it is not asking too much, I would like to have the case continued to the January Term, when I hope to be able to attend to it. I am here under treatment, and improving slowly, but am unfit for work. By extending the time for hearing of the case as indicated, you will greatly oblige. Mr. Hudspeth will sign a stipulation, if one is necessary.

Yours truly John Y. Hewitt.”

To which appellant's attorney replied as follows:

“John Y. Hewitt, El Paso, Texas--My Dear Judge: Yours of the 2d inst. received. I told Mr. Hudspeth that I would grant any reasonable time for you to file briefs in the case of Childers v. Lahann, and, so far as I am concerned, the case can be taken up at the January term. After your reply brief is filed, it may be that I will want to answer the same, although at the present time I think I have covered all points that I could. I will sign any stipulation that you or Mr. Hudspeth may desire, although this letter is sufficient, and I assure you no advantage will be taken, and you will be granted the time that you desire.

Yours truly E. W. Dobson.”

No application for a continuance was made to the court by appellee, and no entry of any kind was made by the court in the case in this regard. On November 26th, the motion to dismiss was filed.

[1] The solution of the question depends upon the effect of the letters quoted, for, if they constituted an appearance by appellee in this court, the motion to dismiss is not well taken.

Bouvier's Law Dictionary defines appearance in practice as follows: “A coming into court as a party to a suit, whether as plaintiff or defendant. The formal proceeding by which a defendant submits himself to the jurisdiction of the court.”

[2] It could hardly be contended that the letters which passed between the attorneys would constitute an appearance within the definition of the term above quoted. There was no “coming into court,” for no action by the court was asked by appellee. No paper, motion, or pleading of any kind was filed by appellee, nor was any relief asked of the court. Had appellee applied to the court for a continuance, such act would have constituted an appearance, and the court would have jurisdiction over his person. And the question as to whether a party has appeared and submitted himself voluntarily to the jurisdiction of the court should be tried by the record, and not by other evidence. Were this not true, the door might be opened to fraud and imposition. As to the acts necessary to constitute an appearance, and how established, the Supreme Court of Indiana say: “To constitute an appearance so as to give jurisdiction over the person of a defendant in this state, there must be some formal entry, plea, motion, or act, or word spoken in said cause in court which should be shown by the record.” Kirkpatrick, etc., Co. v. Central Electric Co., 159 Ind. 639, 65 N. E. 913.

In the case of Scott et al. v. Hull et al., 14 Ind. 136, the defendants sought to remove the cause to the federal court, and the question arose as to whether they had not voluntarily appeared in the case in the state court by appearing before an officer upon the taking of depositions by plaintiffs, and also by defendants taking depositions to be used upon the trial of said cause. The court say: “By bill of exceptions, it appears that these facts were established by evidence other than the record. * * * There should be some formal entry, or plea, or motion, or official act (Shirley v. Hagar, 3 Blackf. 226) to constitute an appearance, and this should be of record, and tried by the record (6 Com. Dig. 8; Kanouse v. Martin, 15 How. [U. S.] 198 [[).”

The Supreme Court of West Virginia, in the case of Groves v. County Court, 42 W. Va. 587, 26 S. E....