Abbott v. Semple

Breese, J. The first point made in this case, that of the legality of the special October term, has been already settled in the case of Mattingly v. Darwin, 23 Ill. 618 . We there held, that such appointment of a special term was regular, and in conformity with the statute.

It is, however, contended here, that admitting the legality of the special term, yet one of the defendants, Lemon, was not summoned at all, the process as to him having been returned not found. We have often said, service of process is unnecessary, if the party appears, appearance being the object of process. When that is effected without service, as by a regular entry of appearance in person, or by attorney, the law is satisfied.

This record shows that both defendants appeared by their attorneys, and joined in a motion to quash the summons; and after that was disposed of, the record shows they again appeared, and entered their motion for a new trial, and that they also appeared to except to the ruling of the court directing the order appointing the special term to be entered on the record; and also appeared and entered their motion to dismiss the case for want of jurisdiction of the persons of the defendants, they not having been summoned to appear at the special October term. It was at no time objected by the defendant Lemon, that he was not served at all, but with his co-defendant Abbott, who was served, joined in the motions that were made. Under these circumstances, we must hold there was a general appearance of both these defendants for all purposes. Frazier v. Resor, 23 Ill. 88 .

When a party only appears for the purpose of showing he is not properly before the court, he should so confine it in his motion, else he may be adjudged to have appeared for all purposes— that his appearance, not being limited to a specific purpose, will be held to be a general appearance. The judgment is affirmed.

Judgment affirmed.