Appearance: Everything You Need to Know
The appearance, with all other subsequent pleadings supposed to take place in court, should purport to be in term time.3 min read
The literal, or by filing of papers or pleadings, coming into court by a party or the attorney for a party.
Signifies the filing common or special bail to the action.
When and How Does an Appearance Occur?
The appearance, with all other subsequent pleadings supposed to take place in court, should (in accordance with the ancient practice) purport to be in term time. It is to be observed, however, that though the proceedings are expressed as if occurring in term time, yet, in fact, much of the business is now done, in periods of vacation.
The appearance of the parties is no longer (as formerly) by the actual presence in court, either by themselves or their attorneys; but, it must be remembered, an appearance of this kind is still supposed, and exists in contemplation of law. The appearance is effected on the part of the defendant (when he is not arrested) by making certain formal entries in the proper office of the court, expressing his appearance; or, in case of arrest, it may be considered as effected by giving bail to the action. On the part of the plaintiff, no formality expressive of appearance is observed.
Who Makes an Appearance?
In general, the appearance of either party may be in person or by attorney, and, when by attorney, there is always supposed to be a warrant of attorney executed to the attorney by his client, authorizing such appearance.
But to this general rule, there are various exceptions; persons devoid of understanding, as idiots, and persons having understanding, if they are by law deprived of a capacity to appoint an attorney, as married women, must appear in person. The appearance of such persons must purport, and is so entered on the record, to be in person, whether in fact an attorney be employed or not.
There must be an appearance in person in the following cases:
- An idiot can appear only in person, and as, a plaintiff he may sue in person or by his next friend.
- A married woman, when sued without her hushand, should defend in person and when the cause of action accrued before her marriage, and she is afterwards sued alone, she must plead her coverture in person, and not by attorney.
- When the party pleads to the jurisdiction, he must plead in person.
- A plea of misnomer must always be in person, unless it be by special warrant of attorney.
- An infant cannot appoint an attorney; he must therefore prosecute or appear by guardian.
- A lunatic, if of full age, may appear by attorney; if, under age, by guardian.
When an appearance is lawfully entered by the defendant, both parties are considered as being in court. And if the defendant pleads to issue, defects of process are cured but not, if he demurs to the process, or, according to the practice of some courts, appears de bene esse, or otherwise conditionally.
Requirements in Criminal Cases
In criminal cases, the personal presence of the accused is often necessary.
- It has been held, that if the record of a conviction of a misdemeaner be removed by certiorari, the personal presence of the defendant is necessary, in order to move in arrest. of judgment: but, after a special verdict, it is not necessary that the defendant should be personally present at the argument of it.
- So, the defendant must appear personally in court, when an order of bastardy is quashed and the reason is, he must enter into a recognizance to abide the order of sessions below.
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