CITES BY TOPIC:  appearance: special and general

Black’s Law Dictionary, 6th Edition, p. 97:

appearance.  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.  The voluntary submission 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 general or special; 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.

Appearance docket.  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.

Initial appearance.  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]

Farmers Trust Co. v. Alexander, 6 A.2d 262, 265 (Pa. Supreme Court 1939)

An Appearance de bene esse is designed to permit a party to a proceeding to refuse to submit his person to the jurisdiction of the court unless it is finally determined that he has forever waived that right. Such an appearance is therefore a special appearance designed to allow the Accused to meet and discharge the contractual requirement of making an appearance, and at the same time, to refuse to submit to the jurisdiction of any alleged plaintiff (and therefore of the applicable court), unless and until some duly authorized Agent of the alleged plaintiff makes all disclosures, specifically by producing a complaint of damage or injury, signed and verified by the injured party

[Farmers Trust Co. v. Alexander, 6 A.2d 262, 265 (Pa. Supreme Court 1939)].

Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8 (1907)

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 administered.'

[Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8 (1907)]