Black’s Law Dictionary,
6th Edition, p. 97:
A coming into court as a party to a suit, either in person or by attorney,
whether as plaintiff or defendant. The formal proceeding by which
a defendant submits himself to the jurisdiction of the court.
to a court's jurisdiction.
In civil actions the parties do not normally actually appear in person,
but rather through their attorneys (who enter their appearance by filing
written pleadings, or a formal written entry of appearance). Also,
at many stages of criminal proceedings, particularly involving minor
offenses, the defendant's attorney appears on his behalf. See
e.g., Fed.R.Crim.P. 43.
An appearance may be either
the former is a simple and unqualified or unrestricted submission to
the jurisdiction of the court, the latter is a submission to the jurisdiction
for some specific purpose only, not for all the purposes of the suit.
A special appearance is for the purpose of testing or objecting to the
sufficiency of service or the jurisdiction of the court over defendant
without submitting to such jurisdiction; a general appearance is made
where the defendant waives defects of service and submits to the jurisdiction
of court. Insurance Co. of North America v. Kunin, 175 Neb. 260,
121 N.W.2d 372, 375, 376.
Appearance by attorney.
An act of an attorney in prosecuting an action on behalf of his client.
Document filed in court in which attorney sets forth fact that he is
representing a party to the action.
A docket kept by the clerk of the court in which appearances are entered,
containing also a brief abstract of all the proceedings in the cause.
Common law classifications.
At common aw an appearance could be either compulsory or voluntary,
the former where it was compelled by process served on the party, the
latter where it was entered by his own will or consent, without the
service of process, though process may be outstanding. Also,
optional when entered by a person who intervened in the action
to protect his own interests, through not joined as a party; conditional
when coupled with conditions as to its becoming or being taken as a
general appearance; gratis, when made by a party to the action,
but before the service of any process or legal notice to appear;
de bene esse, when made provisionally or to remain good only upon
a future contingency; or when designed to permit a party to a proceeding
to refuse to submit his person to the jurisdiction of the court unless
it was finally determined that he had forever waived that right;
subsequent, when made by defendant after an appearance had already
been entered for him by the plaintiff; corporal, when the person was
physically present in court.
A court proceeding for a defendant charged with a felony, during which
the judge advises the defendant of the charges against him and of his
rights, decides upon bail and/or other conditions of release, and sets
the date for a preliminary hearing. See e.g. Fed.R.Crim.P.5.
Notice of appearance.
A notice given by defendant to a plaintiff that he appears in the action
in person or by attorney.
[Black’s Law Dictionary, 6th Edition, p. 97]
The plaintiff in error insists that
the Pennsylvania court had no jurisdiction to proceed against it;
consequently the judgment it rendered was void for the want of the
due process of law required by the 14th Amendment.
If the defendant had
no such actual, legal notice of the Pennsylvania suit as would bring
it into court, or if it did not voluntarily appear therein by an
authorized representative, then the Pennsylvania court was without
jurisdiction, and the conclusion just stated would follow, even
if the judgment would be deemed conclusive in the courts of that
commonwealth. The constitutional requirement that full
faith and credit shall be given in each state to the public acts,
records, and judicial proceedings of every other state is necessarily
to be interpreted in connection with other provisions of the Constitution,
and therefore no state can obtain in the tribunals of other jurisdictions
full faith and credit for its judicial proceedings if they are wanting
in the due process of law enjoined by the fundamental law. 'No judgment
of a court is due process of law, if rendered without jurisdiction
in the court, or without notice to the party.' Scott v. McNeal,
154 U.S. 34, 46 , 38 S. L. ed. 896, 901, 14 Sup. Ct. Rep. 1108.
No state can, by any tribunal or representative, render nugatory
a provision of the supreme law. And if the conclusiveness of a judgment
of decree in a court of one state is questioned in a court of another
government, Federal or state, it is open, under proper averments,
to inquire whether the court rendering the decree or judgment had
jurisdiction to render it.
Such is the settled doctrine of this
court. In the leading case of Thompson v. Whitman, 18 Wall. 457,
468, 21 L. ed. 897, 901, the whole question was fully examined in
the light of the authorities. Mr. Justice Bradley, speaking for
the court and delivering its unanimous judgment, stated the conclusion
to be clear that the jurisdiction of a court rendering judgment
in one state may be questioned in a collateral proceeding in another
state, [204 U.S. 8, 16] notwithstanding
the averments in the record of the judgment itself. The court, among
other things, said that if it be once conceded that 'the validity
of a judgment may be attacked collaterally by evidence showing that
the court had no jurisdiction, it is not perceived how any allegation
contained in the record itself, however strongly made, can affect
the right so to question it. The very object of the evidence is
to invalidate the paper as a record. If that can be successfully
done no statements contained therein have any force. If any such
statements could be used to prevent inquiry, a slight form of words
might always be adopted so as effectually to nullify the right of
such inquiry. Recitals of this kind must be regarded like asseverations
of good faith in a deed, which avail nothing if the instrument is
shown to be fraudulent.' This decision was in harmony with previous
decisions. Chief Justice Marshall had long before observed in Rose
v. Himely, 4 Cranch, 241, 269, 2 L. ed. 608, 617, that, upon principle,
the operation of every judgment must depend on the power of the
court to render that judgment. In Williamson v. Berry, 8 How. 495,
540, 12 L. ed. 1170, 1189, it was said to be well settled that the
jurisdiction of any court exercising authority over a subject 'may
be inquired into in every other court when the proceedings in the
former are relied upon and brought before the latter by a party
claiming the benefit of such proceedings,' and that the rule prevails
whether 'the decree or judgment has been given in a court of admiralty,
chancery, ecclesiastical court, or court of common law, or whether
the point ruled has arisen under the laws of nations, the practice
in chancery, or the municipal laws of states.' In his Commentaries
on the Constitution, Story, 1313, referring to Mills v. Duryee,
7 Cranch, 481, 484, 3 L. ed. 411, 413, and to the constitutional
requirement as to the faith and credit to be given to the records
and judicial proceedings of a state, said: "But this does not prevent
an inquiry into the jurisdiction of the court in which the original
judgment was given, to pronounce it; or the right of the state itself
to exercise authority over the person or the subject-matter. The
Con- [204 U.S. 8, 17] stitution did not
mean to confer [upon the states] a new power or jurisdiction, but
simply to regulate the effect of the acknowledged jurisdiction over
persons and things within the territory." In the later case of Galpin
v. Page, 18 Wall. 350, 365, 366, 368, 21 L. ed. 959, 962, 963,-decided
after, but at the same term as, Thompson v. Whitman,-the court,
after referring to the general rule as to the presumption of jurisdiction
in superior courts of general jurisdiction, said that such presumptions
'only arise with respect to jurisdictional facts concerning which
the record is silent. Presumptions are only indulged to supply the
absence of evidence or averments respecting the facts presumed.
They have no place for consideration when the evidence is disclosed
or the averment is made. When, therefore, the record states the
evidence or makes an averment with reference to a jurisdictional
fact, it will be understood to speak the truth on that point, and
it will not be presumed that there was other or different evidence
respecting the fact, or that the fact was otherwise than as averred.'
In the same case: 'It is a rule as old as the law, and never more
to be respected than now, that no one shall be personally bound
until he has had his day in court; by which is meant until he has
been duly cited to appear, and has been afforded an opportunity
to be heard. Judgment without such citation and opportunity wants
all the attributes of a judicial determination; it is judicial usurpation
and oppression, and never can be upheld where justice is justly
Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8 (1907)]