Dana v. Adams

Treat, C. J. This was an action of assumpsit, brought by Adams against L. D. & L. Dana. But one of the defendants was served with process. Both appeared at the return term, and pleaded to the declaration. At the next term, a judgment by default was rendered against both, for the amount of the promissory note declared on. The entry of judgment was prefaced by this recital. “And now comes the plaintiff, by Church & Willard, his attorneys, and thereupon, come the defendants, by Smith, and withdraw the pleas filed herein by the said defendants, and also their appearance.” It is insisted, that the plaintiff was not entitled to judgment against both defendants. Both were before the court by the filing of pleas. They had a right, as a matter of course, to withdraw the pleas, for the withdrawal could not operate to the prejudice of the plaintiff. Ayers v. Kelly, 11 Ill. 17. But they had no such right to withdraw their voluntary appearance to the action. Leave of the court should have been obtained. A court may properly allow an appearance to be withdrawn, which has been entered through fraud or mistake. But a special application must be made to the court, and the leave obtained, before the appearance can be withdrawn. The record fails to show that any such leave was granted in this case. It does not even show that an application was made for the purpose. It only recites, that the defendants withdrew their pleas and appearance. This must be understood as an abandonment of the defence previously interposed, and also of any right further to appear in the case. In Michew v. McCoy, 3 Watts & Sergeant, 501, the appearance was withdrawn by the leave of the court. The case of Lodge v. The State Bank, 6 Blackford, 557, seems to proceed on the ground, that a defendant has a right, as a matter of course, to withdraw a voluntary appearanee,—a principle that we cannot for a moment sanction. The judgment is affirmed. Judgment affirmed.