appearance(redirected from Delay or Failure to Appear)
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A coming into court by a party to a suit, either in person or through an attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits to the jurisdiction of the court. The voluntary submission to a court's jurisdiction.
In a criminal prosecution, an appearance is the initial court proceeding in which a defendant is first brought before a judge. The conduct of an appearance is governed by state and federal rules of Criminal Procedure. The rules vary from state to state, but they are generally consistent. During an appearance, the judge advises the defendant of the charges and of the defendant's rights, considers bail or other conditions of release, and schedules a Preliminary Hearing. If the crime charged is a misdemeanor, the defendant may sometimes, depending on the local rules of court, enter a plea of guilty or not guilty at the initial appearance; if the crime is a felony, the defendant usually enters the plea at a later court proceeding. A criminal defendant may have an attorney present and may confer with the attorney during the appearance.
In some situations, a defendant may not need to appear in court in person and may even make an appearance by mail. For example, when individuals receive traffic tickets they may choose to send in a check for the amount of the fine.
Many state statutes permit appearances to be made by two-way, closed-circuit television. For instance, North Carolina's rule on video appearances reads:
A first appearance in a noncapital case may be conducted by an audio and video transmission between the judge and defendant in which the parties can see and hear each other. If the defendant has counsel, the defendant shall be allowed to communicate fully and confidentially with his attorney during the proceeding (N.C. Gen. Stat. § 15A-601(a1)).
An appearance is also a coming into court as a party to a civil lawsuit. Although an appearance can be made by either the plaintiff (the one who has sued) or the defendant (the one being sued), the term most often refers to the action of the defendant.
The subject of appearance is closely related to the subject of Personal Jurisdiction, which is the court's authority over an individual party. An appearance is some Overt Act by which the defendant comes before the court to either submit to or challenge the court's jurisdiction.
Any party can appear either in person or through an attorney or a duly authorized representative; the party need not be physically present. In most instances, an attorney makes the appearance. An appearance can also be made by filing a notice of appearance with the clerk of the court and the plaintiff, which states that the defendant will either submit to the authority of the court or challenge its jurisdiction. In a lawsuit involving multiple defendants, an appearance by one is not an appearance for the others. Valid Service of Process is not required before an appearance can be made.
Historically, appearances have been classified with a variety of names indicating their manner or significance. A compulsory appearance is compelled by process served on the party. A conditional appearance is coupled with conditions as to its becoming or being taken as a general appearance (defined later in this article). A corporal appearance indicates that the person is physically present in court. A de bene esse (Latin, "of well being," sufficient for the present) appearance is provisional and will remain good only upon a future contingency. A gratis (Latin, "free" or "freely") appearance is made by a party to the action before the service of any process or legal notice to appear. An optional appearance is entered by a person who is intervening in the action to protect his or her own interests, though not joined as a party. A subsequent appearance is made by a defendant after an appearance has already been entered for him or her by the plaintiff. Finally, a voluntary appearance is entered by a party's own will or consent, without service of process, although process might be outstanding.
The two most common categories of appearances are general and special.
Any action by which the defendant recognizes the jurisdiction of the court constitutes a general appearance. This is an unqualified submission to the court's personal jurisdiction over the defendant and is treated as the equivalent of a valid service of process.
By making a general appearance, the defendant agrees that the court has the power to bind her or him by its actions and waives the right to raise any jurisdictional defects (e.g., by claiming that the service of process was improper). The defendant also waives the objection that the case is brought in the wrong venue. The defendant does not, however, waive any substantive rights or defenses, such as the claim that the court lacks jurisdiction over the subject matter of the case or authority to hear the particular type of case (e.g., a Bankruptcy court will not hear personal injury cases).
A special appearance is one made for a limited purpose. It can be made, for example, to challenge the sufficiency of the service of process. But most often, a special appearance is made to challenge the court's personal jurisdiction over the defendant. It prevents a default judgment from being rendered against the defendant for failing to file a Pleading. (A default judgment is an automatic loss for failing to answer the complaint properly.)
When a defendant makes a special appearance, no other issues may be raised without that appearance's becoming a general appearance. If a party takes any action dealing with the merits of the case, the party is deemed to have made a general appearance and submitted to the jurisdiction of the court.
If a challenge is successful and the court agrees that it does not have personal jurisdiction over the defendant, it will dismiss the action. If the court finds against the defendant on that issue, that decision can later be appealed.
The right to make a special appearance is almost universally recognized, except where abolished by statute. As a rule, leave of court (permission) must be obtained before a special appearance can be made, but this is not always the case.
Federal courts and states that have adopted the Federal Rules of Civil Procedure have eliminated the distinction between a general and a special appearance. Instead of challenging the court's personal jurisdiction in a special appearance, a defendant can do so by use of a pretrial motion to dismiss the Cause of Action, or in an answer to the complaint. A removal proceeding, in which a defendant asks to have the case moved from state court to federal court, is regarded as a special appearance.
In a number of states, a defendant in a lawsuit based on Quasi in Rem Jurisdiction may make a limited appearance. Quasi in rem is a Latin phrase for a type of jurisdiction in which the court has power over the defendant's property because it lies within the geographic boundaries of the court's jurisdiction. The presence of the property gives the court jurisdiction over the person of the defendant. To invoke quasi in rem jurisdiction, the court must find some connection between the property and the subject matter of the lawsuit.
A limited appearance enables a defendant to defend the action on the merits, but should the defendant lose, he or she will be held liable only up to the value of the identified property and not for all possible damages. A defendant who makes a limited appearance and wins the case can be sued again by the same plaintiff in a different court.
In states that have no provision for a limited appearance, a defendant can avoid being subject to the personal jurisdiction of the court by refusing to appear, thereby causing a default and a consequent Forfeiture of the property. Or the defendant can submit to the court's personal jurisdiction, defend the case on its merits, and face the possibility of full liability. The defendant must decide which course of action is best, after comparing the value of the seized property with the damages being sought by the plaintiff and considering the likelihood of winning the case at trial.
The Federal Rules of Civil Procedure do not provide for limited appearances in federal court but instead defer to state law on that issue. A slightly greater number of courts permit limited appearances than do not. The law of the jurisdiction in which the action is brought must be consulted to determine whether limited appearances are permitted.
If an appearance has been entered through Fraud or mistake or after the plaintiff's complaint has been materially amended, the discretion of the court may permit the appearance to be withdrawn. A proper withdrawal is treated as if no appearance at all had been entered in the case. A defendant who has withdrawn a general appearance may ask the court for leave to file a special appearance to challenge the court's jurisdiction.
If someone makes an unauthorized appearance on behalf of the defendant, it may be stricken or set aside by a motion of any party with an interest in the proceeding.
Delay or Failure to Appear
A defendant who fails to appear in court pursuant to a service of process might have a default judgment entered against her or him and be held in Contempt of court. A failure to appear does not, however, result in a waiver of objections to the court's jurisdiction.
If a defendant fails to make an appearance in the time allotted by statute or court rules, he or she may lose certain rights. But if the circumstances warrant it, a court may extend the time of appearance.
Weinreb, Lloyd L. 2001. 2001 Supplement to Criminal Process: Cases, Comments, Questions. Eagan, Minn.: Foundation.
Yeazell, Stephen C. 1998. Federal Rules of Civil Procedures: With Selected Statutes and Cases. Gaithersburg, Md.: Aspen.
n. the act of a party or an attorney showing up in court. Once it is established that an attorney represents (by filing a notice of appearance or representation or actually appearing) the person, the lawyer may make an appearance for the client on some matters without the client being present. An attorney makes a "special appearance" when he/she is appearing only for the purpose of what is before the court that day--such as arraignment of one charged with a crime. If an attorney makes a "general appearance" he or she is telling the court that the client is definitely his or hers and the court can proceed. In the future that attorney will be required to represent the client. Some appearances are voluntary, but most are compulsory and are by notice to the party or, if represented, to his/her attorney. There are variations on appearance rules in states, federal courts, local court procedures, and according to the desires of particular judges. (See: appear, special appearance, general appearance)
APPEARANCE, practice. Signifies the filing common or special bail to the
2. 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.
3. 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 be is not arrested) by making certain formal entries in the proper office of the court, expressing his appearance; 5 Watts & Serg. 215; 1 Scam. R. 250; 2 Seam. R. 462; 6 Port. R. 352; 9 Port. R. 272; 6 Miss. R. 50; 7 Miss. R. 411; 17 Verm. 531; 2 Pike, R. 26; 6 Ala. R. 784; 3 Watts & Serg. 501; 8 Port. R. 442; 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.
4. 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.
5. 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. See Tidd's Pr. 68, 75; 1 Arch. Pract. 22; 2 John. 192; 8 John. 418; 14 John. 417; 5 Pick. 413; Bouv. Inst. Index, h.t.
6. There must be an appearance in person in the following cases: 1st. An idiot can appear only in person, and as, a plaintiff he may sue in person or by his next friend 2d. A married woman, when sued without her husband, should defend in person 3 Wms. Saund. 209, b 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. Co. Litt. 125. 3d. When the party pleads to the jurisdiction, be must plead in person. Summ.on Pl. 51; Merrif. Law of Att. 58. 4th. A plea of misnomer must always be in person, unless it be by special warrant of attorney. 1 Chit. Pl. 398; Summ. on Pl. 50; 3 Wms. Saund. 209 b.
7. An infant cannot appoint an attorney; he must therefore prosecute or appear by guardian, or prochein ami.
8. A lunatic, if of full age, may appear by. attorney; if, under age, by guardian. 2 Wms. Saund. 335; Id. 332 (a) n. (4.)
9. When an appearance is lawfully entered by the defendant, both parties are considered as being in court. Imp. Pr. 215. And if the defendant pleads to issue, defects of process are cured but not, if he demurs to the process, (I Lord Raym. 21,) or, according to the practice of some courts, appears de bene esse, or otherwise conditionally.
10. 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 misdemeanor 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. 2 Burr. 931 1 Bl. Rep. 209, S. C. 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. 1 Bl. Rep. 198. So, in a case, when two justices of the peace, having confessed an information for misbehavior in the execution of their office, and a motion was made to dispense with their personal appearance, on their clerks undertaking in court to answer for their flues, the court declared the rule to be, that although such a motion was subject to the discretion of the court either to grant or refuse it, in cases where it is clear that the punishment would not be corporal, yet it ought to be denied in every case where it is either probable or possible that the punishment would be corporal; and therefore the motion was overruled in that case. And Wilmot and Ashton, Justices, thought, that even where the punishment would most probably be pecuniary only, yet in offences of a very gross and public nature, the persons convicted should appear in person, for the sake of example and prevention of the like offences being committed by other persons; as the notoriety of being called up to answer criminally for such offences, would very much conduce to deter others from venturing to commit the like. 3 Burr. 1786, 7.