Argument for the defendant in error. Wayne County Court, and his pleading to the merits, was equivalent to personal service of process, and gave to the Michigan court full jurisdiction of his person (which was all that was necessary to be acquired in order to render a valid judgment), as also of his cause. His subsequent withdrawal of his plea could not divest the court of the full jurisdiction that it had previously acquired.* 2. The judgment afterwards obtained was admissible in evidence under the plea of the general issue, and was,a bar to this, it being another suit on the same note there sued and recovered upon.† Mr. A. Finch, contra: 1. The only appearance entered by the defendant, in the Wayne County suit, was by the filing of a plea. The court, upon motion of the defendant's attorneys, permits the plea to be withdrawn. Is not that the same, in legal effect, as if the order had been that the defendant have leave to withdraw his appearance? There is no doubt that a court in which an action is pending has the right to permit a party to withdraw his appearance, and if the withdrawal is allowed, the order must be held conclusive until vacated or set aside by a proper proceeding. It cannot be reviewed in another and different action, in another court. In Forbes v. Hyde, it appeared that an answer was inadvertently filed for all the defendants in the suit. The attorneys upon discovering the mistake made application to the court to withdraw the answer and file another, limiting their appearance to the defendants whom they represented and for whom they intended to answer. The motion was granted. In another action the record was offered in evidence. It was * Pollard & Pickett v. Dwight, 4 Cranch, 421; Farrar & Brown v. United States, 3 Peters, 459; Toland v. Sprague, 12 Id. 331; Shields v. Thomas, 18 Howard, 253; Jones v. Andrews, 10 Wallace, 327. Mason v. Eldred, 6 Wallace, 231. 31 California, 346; and see Dubois v. Glaub, 52 Pennsylvania State, 242; Lodge v. The State Bank, 6 Blackford, 558; Michew v. McCoy, 3 Watts & Sergeant, 502. Argument for the defendant in error. objected to on the ground that it appeared the court had never acquired jurisdiction of the person. The objection. was overruled, and the record was admitted in evidence in the lower court. On error, it was held improperly admitted. The opinion says, as to the effect of the withdrawal of the answer: "Upon the discovery of the mistake, upon application, and a proper showing promptly made to the court, and by order of the court, the mistake was corrected and the answer, and consequently the appearance involved in the filing, were withdrawn. After the correction of this mistake, the record, in legal contemplation, stood as though it had never occurred, and there can be no reasonable ground for holding that the court, after the answer was thus withdrawn, had jurisdiction, in consequence of the inadvertence. The plaintiff was in no way injured. The way was open to him to proceed in the proper mode, as he had before commenced to do, to obtain jurisdiction, and he did proceed, in all respects, as though no answer had been filed." 66 2. The statement of the counsel of the defendant at the time when he offered the copy of the record in evidenceand when the court made an inquiry of him whose obvious and sole purpose was to obtain a true and full knowledge of the nature of the record thus offered by him-that it was a suit commenced by an attachment, and that there was no personal service of process," was a representation of such a character, and fade under such circumstances, that to allow the defendant now to allege that the said record shows au appearance duly entered in the suit by the defendant, would be to impute a fraud by the learned counsel of the defendant upon the court below. It would be, in effect, permitting the defendant to allege, as a ground of reversal, a fact which he must have known was in the record when he offered it, and which fact he must have intentionally suppressed. The defendant ought not to complain if the presiding judge assumed the record to be what his counsel represented it to be. His statement, indeed, could have left no other impression upon the judge than that it was a record affecting only Opinion of the court. the property attached, and not creating any personal liability on Anson Eldred or in any way binding on him. It is certain that the presiding judge, and the counsel for the plaintiff, were led by the statement of the counsel to believe that this was the fact. Now, the rule of law is well settled that solemn admissions made by counsel in the progress of a trial conclude the party making them.* Mr. Justice MILLER delivered the opinion of the court. It is argued by the counsel of the 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 agree 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. * Vandervoort v. Smith, 2 Caines, 164; Hoyt v. Gelston, 13 Johnson, 141; Fernald v. Ladd, 4 New Hampshire, 370; Morrish v. Murray, 13 Meeson & Welsby, 52; Shutte v. Thompson, 15 Wallace, 151. Opinion of the court. 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 intentionally 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 Syllabus. record was offered in evidence as a bar. To show that it 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 the effect would be to close to defendant entirely this defence, while to reverse it would only leave the other party where 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. RAILROAD COMPANY v. FORT. F., a boy of tender years, had been engaged, by a company owning it, in a machine shop, as a workman or helper under the superintendence of C., and required to obey his orders. After being employed for a few months chiefly in receiving and putting away mouldings as they came from a moulding-machine, the boy, by the order of C., ascended a ladder to a great height from the floor, among rapidly revolving and dangerous machinery, for the purpose of adjusting a belt by which a portion of the machinery was moved, and while engaged in the endeavor to execute the order had his arm torn from his body. The jury, by a special ver |
