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11. WHAT CONSTITUTES APPEARANCE

18. In General
An appearance may he expressly made by formal written or oral declaration. or record entry,. to the. effect that -(he defendant appears, or It may lie Implied from some act done with the Intention of appearing and submitting to the court's jurisdiction.

Quoted In: Ky.-Smith v. Gadd, 280 S.W.2d 495, 497.

Research Note:
Appearance by or for one defendant or person involved us constituting appearance for others is considered supra 1 13.

Library Reference Appearance 8(1). 9(l).

An appearance may either be express or it may arise by implication from defendant's seeking, taking. or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to plaintiff other than one contesting only the jurisdiction.92 or by reason of some act proceedings recognizing the case as in court, as discussed infra 19.

At early common law the only ways in which a defendant could appear were by putting in special bail or by filing common bail as noted infra 22, or by causing an appearance to be entered in the clerk's office.

An appearance can usually be formally or expressly effected by filing with the clerk a written* direction or praecipe to enter the appearance of the party, by formal record entry, oral announcement in open court."; acceptance of service by defendant attorney or by filing in the cause a paper which either waives service of process or which both waives service or process and recites the entry of an appearance. or, as more fully discussed infra 20. in accordance with a statute or court rule providing for appearance by notice or general retainer or notice of appearance. By the filing of his suit plaintiff enters an appearance which invokes the attention of the
court.

Statutes or rules of court prescribing the method of appearance are often regarded as exclusive to the extent that defendant must follow the prescribed mode of appearing to secure a standing in court and the right to be heard but it is sometimes held that they are not exclusive even to this extent Furthermore, it is very generally held that such statutes or rules do not precluded an appearance, sufficient to give the court jurisdiction over defendant's Person. by some other act or method of a substantial character by which defendant intentionally invokes the court's jurisdiction. There are a number of cases to be found which appear to regard the statutory method of appearing as completely and absolutely exclusive for all purposes; but even in (lie states where these cases were decided there are other holdings which limit and qualify them.

Unless there is a statute contemplating that the appearance be in writing, the appearance need not be in the form of a signed. writing, but may be by informal parole action. -An entry on the docket by the clerk at the oral request or defendant's  counsel is a sufficient appearance in writing within the meaning of a statute; 20 but a rule of court providing that an appearance shall be entered and marked on the margin of the record of the case by the attorney in his own handwriting is not complied with by a typewritten mane of the attorney indorsed on a conterbond filed in replevin.

Knowledge of the pending proceedings and an intention to appear are ordinarily requisite to render an act or course of conduct an appearance. An appearance is not to be inferred except as a result of acts from which an intent to do so may properly be inferred The assumption and conduct of the defense by a nominal for an actual defendant does not constitute an appearance; but where an actual wrongdoer voluntarily- appears and answers in the name of another who has been sued for the former's wrong by mistake, the wrongdoer thereby submits himself to the jurisdiction of the court and may be substituted as defendant A party may not appear conditionally.

An appearance induced by fraud has no efficacy

      19. Acts or Proceedings Recognizing Case as in Court

Any act the defendant which recognizes tile can* as let court constitutes a general appearance. but. If an act does not do this or seek to Invoke affirmative action from t he court. It Is not an appearance.

        Quoted In: Ark.-Sinclair Refining Co. v. Bounds, 127 S.W.2d 629 032. 198 Ark. 149.

Library References

    Appearance 8(1). 9(1)

Broadly stated, any action on the part of defendant, except to object to the jurisdiction over his person which recognizes the case as in court will constitute a general appearance.

 

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