motion going to matters other than jurisdiction, such as can be raised only on a general appearance, is an appearance. This does not mean, however, that a defendant who thus objects to the process may then, if his objections are overruled, answer to the merits, and on appeal from the judgment still avail himself of his objections to the jurisdiction of the court over him. To so hold would "give the defendant, whose objections to the jurisdiction of the court have been erroneously overruled, an opportunity to go to trial, and if the judgment is favorable, to abide by it, while, if it is unfavorable, he could procure a reversal." A defendant coming in to have his default set aside. thereby makes a general appearance." A defendant specially appearing by attorney to move to strike out an amended complaint, and asking for an extension of time in which to move or plead until the determination of the motion, does not appear within the meaning of the statute.10 And it has been held that where a defendant cited to appear in an action before a justice of the peace asks for a continuance for one day, and on the next day appears specially to object to the jurisdiction, he does not thereby enter a general appearance. A notice signed by attorneys, and filed with the clerk after a complaint has been filed, stating that "we have been retained. by, and hereby appear for, the above-named defendants in the above-entitled cause," is a sufficient appearance of the defendant." And where a plaintiff amended his complaint by adding new parties defendant, and these defendants filed an acknowledgment of "service of summons and a copy of the complaint," and consented that the decree therein prayed for by the plaintiff be entered, it was held to be a sufficient appearance to authorize a decree against them.12 The appearance of a defendant who has not been served with notice to testify as a witness does not constitute an appearance bringing him within the jurisdiction of the court as a party.13 49; Miner v. Francis, 3 N. Dak. 549, 58 N. W. 343; Kinkade v. Myers, 17 Or. 472, 21 Pac. 557; Sealey v. California Lumber Co., 19 Or. 95, 24 Pac. 197; Benedict v. Johnson, 4 S. Dak. 392, 57 N. W. 66. 7 Rogers v. McCord, 19 Okla. 115, 91 Pac. 864; Boulder (Colorado) Sanatorium v. Vanston, (N. Mex.), 94 Pac. 945. 8 In re Clarke, 125 Cal. 392, 58 Pac. 22. 9 Cal. Code Civ. Proc., § 416; Blackburn v. Bucksport, 7 Cal. App. 649, 95 Pac. 668. 10 Powers v. Braly, 75 Cal. 237, 17 Pac. 197. 11 Dyer v. North, 44 Cal. 157. The A good test as to what constitutes an appearance within the meaning of the statute is to be found in two Oregon cases.14 distinction between a general appearance and a special appearance is there made as follows: When one appears who asks some relief which cannot be granted only on the hypothesis that the court has jurisdiction, appearance is general, whether it be limited by terms or not; but if granting the relief would be consistent with a want of jurisdiction, the appearance may be special, without submitting to the jurisdiction for any other purpose. Neither execution of a forthcoming bond in attachment, nor special appearance to move for dismissal for lack of jurisdiction, nor subsequent plea in abatement constitutes a general appearance.15 17 In a suit against infants, where there is no personal service upon them, an appearance and defense for them by their general guardian will give the court jurisdiction of their persons;16 and this is true even where no summons has been issued at all," and a judgment rendered against an infant in an action in which he has appeared by an attorney will be upheld as fully as though he had appeared in person.18 In proceedings to probate a will, if the heirs at law enter a personal appearance and expressly consent to the admission of the instrument to probate, the court acquires jurisdiction of such parties.10 § 1102. Appearance by attorney.-A party to an action may appear in his own person or by attorney, but he cannot do both; and if he appears by attorney, he cannot assume control of the case.20 In this connection, it is to be noted that when in the trial of an action at law the parties appear in person and undertake its management, each for himself and without the aid of counsel, the law presumes them to have full knowledge of the 14 Belknap v. Charlton, 25 Or. 41, 34 Pac. 758; Winter v. Union Packing Co. (Or.), 93 Pac. 930. 15 Winter v. Union Packing Co. (Or.), 93 Pac. 930. 16 Smith v. McDonald, 42 Cal. 484; Western etc. Co. v. Phillips, 94 Cal. 56, 29 Pac. 328; Redmond v. Peterson, 102 Cal. 599, 41 Am. St. Rep. 206, 36 Pac. 923. 17 Emeric v. Alvarado, 64 Cal. 529, 2 Pac. 418. situation of their case.21 While an attorney of record remains such, his right to manage and control the action cannot be questioned by the opposite party.22 If an attorney appears for a part only of the defendants, and inadvertently answers for all, and obtains leave of the court to withdraw his answer and substitute a new one, answering only for the parties for whom he appears, the court acquires jurisdiction only of those for whom he does actually appear.23 And where an attorney expressly appears for certain defendants in an action, his signature to papers in the case after that time, as attorney for the defendants, will be construed as limited to those for whom he expressly appeared.24 § 1103. Authority of attorney. As a general rule, the authority of an attorney to appear will be presumed.25 An attorney is an officer of the court, and answerable to it for the proper performance of his professional duties. He appears and participates in the proceedings only by the license of the court,20 and his license is prima facie evidence of his authority to appear for the person whom he professes to represent; but if the supposed client denies his authority, the court may require him to produce evidence of his retainer, either upon the direct application of the person represented or upon motion of the attorney of the opposite party to dismiss, founded upon the affidavit of the person or party concerning whom the motion is made.27 The adverse party or his attorney cannot, upon mere suggestion at the bar, deny that the attorney so appearing has full authority to prosecute the suit.28 While an attorney cannot without special authority admit service of jurisdictional process upon his client, it will be presumed in collateral proceedings that the attorney who did so admit service had authority to do so.29 And it has been held 21 Waldez v. Archuleta, 3 N. Mex. 195, 5 Pac. 327. 22 Commissioners v. Younger, 29 Cal. 147, 87 Am. Dec. 164. 23 Forbes v. Hyde, 31 Cal. 342; Merced County v. Hicks, 67 Cal. 108, 7 Pac. 179. 24 Spangel v. Dellinger, 42 Cal. 148; Hobbs v. Duff, 43 Cal. 492; Kenney v. Parks, 120 Cal. 23, 52 Pac. 40. 25 County of San Luis Obispo v. Hendricks, 71 Cal. 242, 11 Pac. 682; Williams v. Uncompahgre Canal Co., 13 Colo. 474, 22 Pac. 806. 26 Clark v. Willett, 35 Cal. 534. 27 Id. 28 Turner v. Caruthers, 17 Cal. 431; Pacific Paving Co. v. Vizelich, 141 Cal. 8, 74 Pac. 352. 29 Hunter v. Bryant, 98 Cal. 248, 33 Pac. 51; Pacific Paving Co. v Vizelich, 141 Cal. 8, 74 Pac. 352. that the appearance of an attorney wholly unauthorized, there being no fraud or allegation of insolvency, did not give the party a right to attack the judgment on that ground.30 Where a defendant has been served with summons, and a default has been entered against him, it is immaterial whether or not the attorney. who appeared for him was authorized to do so, and a judgment afterward rendered against such defendant by default will not be set aside upon the ground that the attorney appeared without authority. The formal notice of appearance required by the statute is unnecessary, unless the right of the attorney to appear is challenged by the adverse party.32 But if an attorney were unauthorized to appear for a defendant without service of process, and the fact of want of authority is made to appear in the action, the entry of the appearance is void.33 In such a case, a judgment procured and a foreclosure and sale based thereon. will be vacated in equity, although the defendant had no defense. to the action, if he offers to pay the amount of the mortgage debt and interest.34 31 The practice of permitting appearance without producing a warrant of attorney is as applicable to appearance for a corporation as for a natural person;35 but the court has inherent power to determine by what authority an attorney appears either to prosecute or defend for another, whether that other be a natural or an artificial person.30 If an attorney has been admitted to practice in another state, and has been accustomed to practice in California, and has been recognized by the courts and the bar of that state as a member of the bar, he is a de facto officer of the courts of that state; and an entry of appearance by such attorney is of the same effect as though he had been admitted to practice there.37 If an answer has the signature of the attorney of record and that of an associated attorney attached to it, the court will not strike it out. The court will not try the question whether the 30 Hayes v. Shattuck, 21 Cal. 51. 31 Hunter v. Bryant, 98 Cal. 252, 33 Pac. 55. 32 Carter v. Koshland, 12 Or. 492, 8 Pac. 556. 33 Great Western Min. Co. v. Woodmas etc. Min. Co., 12 Colo. 46, 13 Am. St. Rep. 204, 20 Pac. 771; Garrison v. McGowan, 48 Cal. 592. 34 McEachern v. Brackett, 8 Wash. 656, 40 Am. St. Rep. 925, 36 Pac. 690. 35 Osborn v. Bank of United States, 9 Wheat. 738, 6 L. Ed. 204. 36 Williams v. Uncompahgre Canal Co., 13 Colo. 469, 22 Pac. 806. 37 Garrison v. McGowan, 48 Cal. 592. signature of the attorney of record was attached by himself or by his associate without his authority.38 It is well settled that the courts will take judicial cognizance of the signatures of officers as such, although there is no rule which extends such notice to the signatures of the parties.39 If the plaintiff's attorney stipulates that a party may file an answer nunc pro tunc as of a certain date, he is estopped from saying that such defendant was not a party to the action on that date; but an attorney for one of the parties in a proceeding to determine conflicting claims to town lots cannot, after the board of trustees have awarded the lots to his client, pass his client's right or title by a stipulation in the case for the entry of a void judgment."1 E. F., Esq., Attorney for Plaintiff A. B.-Sir: Please take notice, that the defendant C. D. hereby appears in this action by the under signed, his attorney. [DATE.] 38 Willson v. Cleaveland, 30 Cal. 192. 39 Alderson v. Bell, 9 Cal. 321; Moffitt v. McGrath, 25 Or. 480, 36 Pac. 578. G. H., Attorney for Defendant. 40 Lawrence v. Ballou, 50 Cal. 258. 41 Ryan v. Tomlison, 31 Cal. 11. |