Eldred v. Bank

Mr. J.ustice MILLER delivered the opinion of the court. It is argued by the counsel of tne defendant in .error that the withdrawal of the plea of Anson Eldred left the case as to him as though he had never filed the plea, and that never having been served with process he was not liable to the personal judgment of the court. We do not agréé to this proposition. The filing of the -plea was both an appearance and a defence. The case stood for the time between one term and another with an appearance and a plea. The withdrawal of the plea could not have the effect of withdrawing the appearance of the defendant, and requiring the plaintiff to take steps to bring that defendant again within the jurisdiction of the court. Having withdrawn that plea he was in condition to demur, to move' to dismiss the suit if any reason for that could be found, or to file a new and different plea if he chose, either with the other defendants jointly, or for himself. He was not, by the withdrawal of the plea, out of court. Such a doctrine would be very mischievous in cases where, as it is very often, the first and only evidence of the appearance of a party is the filing of his plea, answer, or demurrer. The case might rest on this for a long period before it was ready for trial, when, if the party could obtain leave of the court to’withdraw his plea (a leave generally granted without objection), he could thereby withdraw his appearance, the plaintiff is left to begin de novo. *552 • We are of opinion that the record of the suit in Michigan shows a valid personal judgment against Anson Eldred, and that that judgment was a bar to recovery in the present suit. But it is further urged that the present judgment should not be reversed because the court was prevented from giving the instructions asked by defendant’s counsel by being misled by that counsel as to the character of the judgment. The bill of exceptions, immediately after what is said about the purposes for which the transcript of the judgment was offered, proceeds as follows: “ The defendant’s counsel, in answer to a question from either the court or counsel, admitted that said suit was an attachment suit, and that there was no personal service of process-on defendant.” It is argued that this was equivalent to a declaration that it was rendered without notice or personal appearance. This impression may have been produced on the opposite counsel and the court may have shared in it. But it is very clear that it was not so equivalent, and that what he said was perfectly consistent with what is now found to be in that transcript, namely, the appearance of defendant and a valid personal judgment against him. Many attachment suits are accompanied by the appearance of defendant in the progress of the suit, though not served with process or notice. Besides, the counsel for defendant had stated that he offered it as a bar, and both counsel and court had their attention turned to the fact that it could be no bar without service or appearance; and after all this was over and the record admitted he asked the court for the instruction which was refused and which could only be founded on the idea that it was valid .as a personal judgment. The record was open to inspection of counsel opposed, and it would be a very dangerous practice to hold, under these circumstances, that counsel had iutentioually misled his opponent and the court in this matter. There seems to be an entire absence of motive to deceive the court or counsel. What was said was at the time the *553 record was offered in evidence as a bar. To show that if was a valid personal judgment was to secure its admission, while to show it was not was to render its admission doubtful. So, in regard to the instruction, there could be no object in misleading the court other than to have a judgment rendered against his client that he might have the satisfaction of reversing it, a motive hardly to be imputed to counsel in this court. It seems much more reasonable to infer that counsel doubted'whether the withdrawal of the plea did not withdraw the appearance of defendant, and, therefore, did not say anything on that point. We do not-think that under these circumstances we can permit a judgment to stand, manifestly erroneous, where there is a complete bar found to it in the record, when th® effect would be to close to defendant entirely this defence, while to reverse it would ouly leave the other party ivhere he would be had nothing been said. He has not been injured by the statement of the opposing counsel.. Shall he profit by it to the extent of having an erroneous judgment confirmed? Judgment reversed, but without costs to either party in this court, and a new trial granted in the Circuit Court.