Cornell University v. Denny Hotel Co.

Citations

• 15 Wash. 433
• 46 P. 654
• 1896 Wash. LEXIS 213

Syllabus

<p>APPEARANCE — WHAT CONSTITUTES — WAIVER OF DEFAULT — APPEAL — SERVICE OF NOTICE — SUFFICIENCY OF — PARTIES.</p> <p>The acceptance of service of a summons and complaint by an attorney for defendant and the endorsement thereon of appearance in the cause constitutes an appearance within the meaning of Code 1881, § 72, which provides that “ a defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of an appearance for him.”</p> <p>The entry of a default against a defendant is waived by allowing him to participate in the subsequent proceedings in the cause, to serve and be served with motions, and by otherwise treating him as a party thereto.</p> <p>Notice of appeal must be served on all parties who have appeared in the action, even though such appearance may not have been made until after the entry of a default against them.</p> <p>Under Laws 1893, p. 121, §5, where actual service of notice of appeal cannot be had upon a party or his attorney, the return of the sheriff to that effect is the only competent evidence of the fact sufficient to justify service upon the clerk in behalf of the party not found.</p> <p>The fact that notice of appeal is served upon an attorney for a certain defendant will not charge him with notice on behalf of another defendant for whom he also appears as attorney.</p> <p>The fact that an appeal involves two separate cases which had been consolidated pursuant to §1674, Gen. Stat., will not warrant the supreme court in entertaining jurisdiction of the appeal from a single decree entered therein, when some of the defendants have not been served with notice of appeal, although there may be a proper service upon all the defendants in one of the cases as originally instituted.</p>