CREIGHTON V. KERR, 87 U. S. 8 (1873)

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U.S. Supreme Court

Creighton v. Kerr, 87 U.S. 20 Wall. 8 8 (1873)

Creighton v. Kerr

87 U.S. (20 Wall.) 8


A withdrawal "without prejudice to the plaintiff" of a general appearance entered by an attorney for the defendant means that the position of the plaintiff is not to be unfavorably affected by the Act of withdrawal; that all his rights are to remain as they then stood. Hence where there has been error in the beginning of an action, as ex. gr., one of foreign attachment, by reason of want of notice required by statute to be given to the defendant, and an attorney appears generally for such defendant, and so cures the defect, the advantage thus given to the plaintiff is not taken away by a withdrawal declared to be "without prejudice" to him. And the court states that it does not intend to intimate that the result would have been different had the appearance been withdrawn unconditionally.

The statutes of Colorado relating to attachments enact:

"SECTION 54. Whenever a plaintiff in any civil action pending in any court of record in this territory shall file in the office of the clerk of the court wherein such cause is pending, an affidavit showing that the defendant resides out of this territory, it shall be the duty of the clerk to cause a notice to be published in some newspaper published in the county in which such cause is pending, for four successive weeks prior to the next term of the court, which notice shall set forth and state the title to the court in which such action is pending, the nature of the action, and, if such action shall be brought to recover money, the amount claimed by the plaintiff, the names of the parties, and the time when and the place where the next term of court in which such action is pending will be held, and that if the defendants shall fail to appear at the term of court and plead or demur, judgment shall be entered by default. "

Page 87 U. S. 9

"SECTION 55. It shall be the duty of the plaintiff in all cases in which such notice shall be published, in addition to such publication, . . . if upon diligent inquiry the place where the defendant may then be found can be ascertained, to send to such defendant and to each of them, by mail, a true copy of such notice, properly addressed to such defendant, at the post office nearest to the place where such defendant may be found, at least thirty days prior to the term of court mentioned in such notice."

This statute being in force, Kerr and another, in May, 1870, sued Creighton in the District Court for Arapahoe County, in Colorado Territory, in attachment. They filed an affidavit alleging Creighton's nonresidence and that he owed them $5,563.

The sheriff returned that he had attached certain shares in the Colorado National Bank belonging to Creighton, who was not found.

The plaintiffs then filed their declaration, claiming $8,000.

No notice of these proceedings was published as required by the statutes.

Subsequently an entry was made in the court as follows:

"Now come the said plaintiffs, by Alfred Sayre, Esq., their attorney, and the said defendant, by Messrs. Charles and Elbert, his attorneys, also comes, and thereupon, on motion of said plaintiff's attorney, the said defendant was ruled to plead ten days from this date."

On the 19th of October the following:

"And now on this day come Messrs. Charles and Elbert and withdraw their appearance as attorneys for the said defendant, without prejudice to the plaintiff."

On the 27th of October, a judgment was entered reciting the appearance, its withdrawal "by leave of the court and without prejudice to said plaintiffs," and the defendant's failure to plead according to the rule. Damages were assessed by a jury at $12,244. A remittitur was entered for $4,244, and judgment taken for $8,000. The supreme court affirmed this judgment, and the defendant brought the case here.

Page 87 U. S. 10

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