APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.
MR. JUSTICE SHIRAS, after making the above statement, delivered the opinion of the court.
It is conceded that the Rio Grande Irrigation and Colonization Company was duly served with process, and that an appearance was entered on its behalf by H. L. Pickett, a qualified attorney. The assential question in the case is whether the subsequent withdrawal of his appearance by the attorney, without leave of the court, left the record in a condition in which a judgment by default for want of an appearance could be validly entered.
Cases are cited by the appellant's counsel in which it has been held that the appearance of a defendant, once regularly entered, cannot be withdrawn without leave of the court. United States v. Curry, 6 How. 106, 111; Dana v. Adams, 13 Illinois, 691.
But an examination of those cases discloses that this is a rule designed for the benefit and protection of the plaintiff. Usually the question has arisen where there had been no service of process on the defendant, and where, therefore, a withdrawal of appearance by the attorney would leave the plaintiff without ability to proceed by defaulting the defendant for want of an appearance. It was said by this court in Creighton v. Kerr, 20 Wall. 8, 13: "The appearance gives rights and benefits in the conduct of a suit, to destroy which by a withdrawal would work great injustice to the other parties."
United States v. Curry, supra, was a suit in equity which had passed to a final decree, and the defendant, desiring to appeal, issued a citation to the complainant, which citation was served on the person who had been attorney of record during the trial of the suit. The attorney subsequently by affidavit stated that he was not the attorney of the appellee at the time the citation was served on him; that he had been discharged from all duty as attorney, and had so informed the marshal at the time of the same. The validity of the appeal was therefore attacked on the ground that there had been no proper service of the citation. This court said:
"The citation is undoubtedly good and according to the established practice in courts of chancery. No attorney or solicitor can withdraw his name after he has once entered it on the record without the leave of the court. And while his name continues there the adverse party has a right to treat him as the authorized attorney or solicitor, and the service of notice upon him is as valid as if served on the party himself. And we presume that no court would permit an attorney who had appeared at the trial, with the sanction of the party, express or implied, to withdraw his name after the case was finally decided. For if that could be done, it would be impossible
to serve the citation where the party resided in a distant country or his place of residence was unknown, and would in every case occasion unnecessary expense and difficulty, unless he lived at the place where the court was held. And, so far from permitting an attorney to embarrass and impede the administration of justice by withdrawing his name after trial and final decree, we think the court should regard any attempt to do so as open to just rebuke."
Sloan v. Wittbank, 12 Indiana, 444, was a suit on a promissory note, and to which the defendant appeared. He then withdrew his appearance and the case went to trial, and resulted in a judgment in favor of the plaintiff. On error, the Supreme Court of Indiana held that the withdrawal of appearance carried with it the answer, and the court should then have entered judgment as by default, instead of going to trial, but that this was a mere irregularity which could not injure the defendant, and could not be taken advantage of on appeal.
So it was held by the Supreme Judicial Court of Massachusetts, that it was no ground for reversing a judgment rendered on the default of the defendant, after he had appeared and then withdrawn his appearance, that the date of the writ was a year earlier than the fact. Fay v. Hayden, 7 Gray, 41.
A case, indeed, might arise of collusion between the plaintiff and the attorney of the defendant, but in such case the court, on due and prompt application to it, would no doubt defeat any attempt on the part of the plaintiff to take advantage of a corrupt dereliction of duty on the part of the defendant's attorney. But it is not pretended, in the present case, that there was any collusion practised between the plaintiff and the defendant's attorney, ...