Mr. Justice Hunt delivered the opinion of the court:

afterwards, in October, 1867, an agreed statement of facts was presented to the court.

If we correctly apprehend the position of the case as there stated, there can be no difficulty in reaching a correct conclusion.

In his first point the plaintiff in error says: "The only errors relied on are, that the court erred in holding that the Columbian Insurance Company was not dissolved, and the company being dissolved, it had no right to enter judgment against it or the trustees."

The indebtedness of the plaintiffs in error and their liability to pay the amount of their notes to the defendant in error, as adjudged by the Massachusetts court, are thus admitted. But it is insisted that in reaching its conclusion, and as a part of the process of reasoning by which it was reached, the Supreme Court of Massachusetts erroneously held that the judgment of the New York court, that the insurance company was dissolved, was without authority and was void.

If this be conceded, of what importance is it to the plaintiffs? How does it concern them whether the judgment dissolving the insurance company was erroneous or whether it was correct? All they have to do is to pay the amount of their notes. This it is conceded that they are bound to do, and this the certified copy of the the record before us shows that the insurance company and its receivers consented that it be adjudged they should and must do. Payment under such circumstances is a complete protection to them against a claim for repayment by the receivers upon a suit brought in the New York courts equally as in the courts of Massachusetts.

The record shows the following facts, viz.: that the summons by which the suit was commenced was served on the insurance company in Massachusetts by levying on a ship as its property on the 18th of June, 1866; that on the first Tuesday of July the corporation entered its appearance, by its attorneys, and filed an affidavit of merits; that on the 30th of July it filed an answer denying that it was a corporation, and denying all the material allegations of the complaint, which answer was signed by Joseph Nickerson as its attorney; that on the 3d of October, 1866, George A. Osgood and Cyrus Curtis made an adverse claim, and filed a petition alleging that they were the receivers of the said insurance company, praying to be admitted as parties to the action, setting forth the manner of their appointment, alleging that all the credits, effects and assets of said company were vested in them, and claiming the effects and credits in the hands of the said supposed trustees, which answer was signed by Edward Bangs, as attorney; that on the 19th |

At the January Term, 1869, the court ordered the following entry to be made, viz.: "Trustee charged. Judgment for the plaintiff. By the Court. Geo. C. Wild, Clerk.”

At the following April Term a consent was filed by Mr. Bangs, defendant's attorney, that the judgment be entered for the plaintiff for the sum of $3,753.79, damages and costs, dated June 10th, 1869. On the 12th of June is made the following entry: Claimants withdraw. E. Bangs, Attorney. John C. Dodge, Attorney for Plaintiff. Filed June 12th, 1869."

44

On the 14th of June a formal judgment for the amount is rendered for the plaintiff, reciting that the trustees are charged upon their answer, and that the claimants withdrew.

It is impossible to present the case of a judgment which would be more conclusive upon the corporation, and upon the receivers, than the case presented. They were parties in form and in fact. They contested the claim as far as contest was available, and when further contest was unavailing the attorney for the receivers consented to the entry of the judgment, in terms withdrew their opposition, and a formal judgment was entered.

If the corporation was in existence, so that it could appear in a suit, it was concluded by the appearance of its attorney. Murray v. Vanderbilt, 39 Barb., 140. If it was not in existence, the receivers representing the corporation and its creditors, were bound by the appearance of their attorneys. In either event the result is the same.

This judgment is binding upon the corporation and the receivers, and in the case of a suit brought by either of them against the trustees, would be an indisputable bar to their right of recovery, and this in any State in the Union. The appearance by authorized attorneys was equivalent to a personal service of process upon those parties.

Without intimating for a moment that an error was made by the Supreme Court of Massachusetts, it is too plain for discussion that it is immaterial to the plaintiff whether there was error or not.

It is a point in which they are not concerned. They have but to pay their debt, adjudged to be due in a proceeding which protects them against all the world. Magoon v. Scales,9 Wall., 31, 32 [76 U. S., XIX., 548]; Christmas v. Russell, 5 Wall., 290 [72 U. S., XVIII., 475]; Gruner v. U. S., 11 How., 163; U. S. v. Yates, 6 How., 605; Harris v. Hardeman, 14 How., 334; Toland v. Sprague, 12 Pet., 300; Chaffee v. Hayward, 20 How., 208 [61 U. S., XV., 804]; McDonogh v. Millaudon, 3 How.,693; Field v. Gibbs, 1 Pet. C. C., 155; Bk. v. Slocomb, 41 Pet., 60; Eldred v. Bk., 17 Wall., 551[84 U. S., XXI., 686].

JOHN L. PRIEST, Plff. in Err., v. JOHN B. FOLGER (No. 298), and SUPPLY C. THWING, Plff. in Err., v. JOHN B. FOLGER (No. 299). These cases involve the same questions as the case above decided, and in accordance with that decision, are affirmed.

counsel, and upon motion the defendant was ruled to plead in ten days from that date.

"

Cited.-20 Wall., 13; 97 U. S., 336; 2 Flipp., 586.

EDWARD CREIGHTON, Plff. in Err.,

Ο.

JOHN KERR ET AL.

(See S. C.. 20 Wall., 8-14.)

Appearance equivalent to personal service—effect of withdrawal of appearance.

which judgment was taken being recited at length in the record.

Thereupon the damages were assessed by the jury to an amount exceeding the ad damnum of the declaration; but the plaintiff remitted all in excess of the sum of $8,000, and the amount of the ad damnum, for which amount, with costs of suit, judgment was given by the court and execution awarded.

Nov. 26, 1870, the plaintiff in error sued out his writ of error from the Supreme Court of Colorado Territory to the said district court, which was made to operate as a supersedeas by of the Supreme Court. a compliance with the order of one of the judges

Feb. 29, 1872, the judgment of the court below was affirmed by the Supreme Court of Col

ance.

Argued Apr. 14, 1874.

Decided May. 4, 1874. IN ERROR to the Supreme Court of the Territory of Colorado.

On May 30, 1870, John Kerr, one of the defendants in error, filed an affidavit in attachment, pursuant to the laws of Colorado, in the District Court of the First Judicial District of the Territory of Colorado, sitting within and for the County of Arrapahoe, setting forth that the plaintiff in error was indebted to him and Alex ander Lobb, the other defendant in error, in the sum of $5,563.50, for telegraph poles and labor and materials furnished by the defendants in error to the plaintiff in error, and that the said plaintiff in error was a non-resident of the Territory of Colorado.

Thereupon the necessary bond was filed, and a writ of attachment was issued, returnable to the June Term, 1870, of said district court. June 4, 1870, the plaintiff filed his declaration in assumpsit, which consisted of the consolidated common counts for work and labor performed, for telegraph poles, wares and goods sold and delivered, for money laid out and expended, and for money in arrear upon an accounting, the damages being laid at $8,000. To this a copy of plaintiff's account was attached. June 10, 1870, the sheriff returned the writ executed, by attaching certain shares of bank stock, and the further return of non est inventus as to the defendant.

June 17, on motion of plaintiff's counsel, the cause was continued to the next term.

Oct. 12, 1870, and at the October Term of

NOTE.-Appearance cures defects in service of processs and its non-service, except want of jurisdiction of subject-matter. See note to Knox v. Summers, 7 U. S. (3 Cranch), 496.

Effect of appearance by counsel or attorney, in an action; unauthorized appearance; what is an appearance. See note to Shelton v. Tithin, 47 U. S. (6 How.),

163.

From the judgment of the Supreme Court of Colorado the defendant in the original suit, Mar. 9, 1872, sued out his writ of error from the Supreme Court of the United States to said Supreme Court of Colorado.

The errors assigned here are as follows: 1. The court erred in rendering judgment without publication notice of the proceedings, and without mailing the same to the defendant.

2. The court erred in rendering judgment for a larger amount than was claimed in the writ and other proceedings.

Mr. J. M. Woolworth, for plaintiff in error:

The defendants in error may claim that, Mr. Creighton having appeared generally in the action, they were not limited by the amount named in the writ, but could have the sum alleged as their damages in the declaration.

The account, by which the sum really claimed appeared, would control the nominal damages alleged in the declaration. The system of pleading which obtains in Colorado, as shown by the statute given above, sec. 8, p. 502, requires the account to be annexed to the declaration. A defendant, duly served with process, might safely let judgment go by default, or appearing, might decline to plead, resting safely in the supposition that the amount adjudged against him would not exceed that shown by the account to be due. To render judgment for a much larger amount is the grossest error.

Had the withdrawal of the appearance been general, and unqualified by the words "without prejudice to the plaintiff," the case would have stood as if no appearance had been entered.

Michew v. McCoy, 3 Watts. & S., 501; Lodge v. State Bank, 6 Blackf., 557; Dana v. Adams, 13 Ill., 691.

Those words, "without prejudice," do not retain to the plaintiff the advantage of the appearance. To give them that effect would nullify the withdrawal. To say to a party: you may withdraw your appearance, but we will

proceed against you as being before the court, is a contradiction of terms. The utmost meaning that can be attributed to the words is, that the property, and all rights of the plaintiff not resting on the appearance, should remain unaffected by the withdrawal. To give greater force to those words, would be to unduly magnify a merely formal proceeding. The appearance on the 12th of the month did not delay the entry of the rule to plead, nor lengthen the time to plead. The rule, in the very form and words of it, was required in the case of a defendant failing to appear, as the statute above shows. The appearance was withdrawn on the 19th of the month, seven days after its entry and three days before the expiration of the rule. So that nothing was gained by the defendant nor lost to the plaintiff. To give it the effect of subjecting a party, not found and not resident in this jurisdiction, to a judgment for nearly $2,500 more than could have been taken against him, is shocking.

Messrs. R. T. Merrick and Alfred Sayre, for defendants in error:

As to the first assignment of error, the defendants in error rely upon the fact:

that notice of the proceedings required by the laws of Colorado. It may be assumed, also, that in making a claim of damages for $5.563.50, only in the writ of attachment, and in making a claim for $8,000 in the declaration, an error was committed. It is insisted that, in consequence of this claim in the writ, the party would have been justified in assuming that no judgment for a larger amount would be taken against him; and that great injustice might have been done to him. We do not find that the respect

able counsel claims that any injustice has actually been done.

But we are of the opinion that there has been no opportunity for the commission of injustice. We find the facts in this respect to be as follows:

After the execution of the writ of attachment the plaintiff filed his declaration claiming damages to the amount of $8,000, giving the items of the claim. After this time, viz.: on the 12th day of October, the defendant appeared in the suit by his counsel, Messrs. Charles and Albert. The appearance was general, and, "thereupon," as the record says, on motion of the plaintiff's attorney, the defendant was ruled to plead in ten days.

Within the ten days, in which an order to plead had been entered, upon, or upon the faith of, or in consequence of their appearance, the attorneys came into court and withdrew their appearance as attorneys for the defendant, without "prejudice to the plaintiff." Leave to withdraw was granted upon this condition. Assum

(b) That, whether the withdrawal of the appearance was that of the attorneys simply or was, in effect, the withdrawal of the defendant, it was, in either case, without prejudice to the plaintiff, i. e.; any advantage the plaintiff had obtained by reason of the voluntary submission of the defendant, to the jurisdiction of the court, he was to retain notwithstanding the act of the defendant's attorneys.

Dana v. Adams, 13 Ill., 691.

As to the second error assigned, it is asserted by the defendants in error that the judgment in this case is a personal judgment as contradis tinguished from a judgment in rem. This is an attachment case and, so far as attachment lien is concerned, it is not relinquished by the appearance of the defendant in the action. But the judgment rendered is a personal one, and upon which a general execution will lie.

See, Conn. v. Caldwell, 1 Gilm., 536; Lockridge v. Foster, 4 Scam., 569; Tunnison v. Field, 21 Ill, 108; Pierson v. Finney, 37 Ill., 29; Lawrence v. Yeatman, 2 Scam., 17; Rowley v. Berrian, 12 Ill., 198; Hobson v. Emporium Real Estate, etc., Co., 42 Ill., 306; Kerr v. Swallow, 33 Ill., 379; Hichins v. Lyon, 35 Ill., 150; opinion of Supreme Court of Colorado in this case, Creighton v. Kerr, 1 Col., 509.

Mr. Justice Hunt delivered the opinion of the court:

In the view we take of this case it is not necessary to examine the alleged irregularities in the conduct of the suit or the alleged defects in its commencement. Without intending, in fact, to decide those points, it may be assumed, as is argued by the plaintiff, that there was not

it manifestly would have been had there been no withdrawal, and assuming that a failure to comply therewith placed the defendant in default, and entitled the plaintiff to a judgment by nil dicit, as would manifestly have been the case had there been no withdrawal, the plaintiff and the court held the action to be undefended, and a judgment was entered for the plaintiff, with damages to be assessed by a jury to be impaneled. The jury received evidence upon this subject, and under instructions from the court rendered a verdict for $12,244.50. The evidence is not returned in the record, as there was no occasion that it should be, and there is no presumption of law, or reason in fact, to suppose that the verdict was for a larger sum than was justly due to the plaintiff. For all in excess of $8,000 a remission was made, and judgment was entered for that sum.

The leave to withdraw the appearance of the defendant's attorneys was given upon the condition that it should be "without prejudice to the plaintiff." This meant that the position of the plaintiff was not to be unfavorably affected by the act of withdrawal. All his rights were to remain as they then stood.

A general appearance waives all question of the service of process. It is equivalent to a personal service. The question of jurisdiction only is saved. U. S. v. Yates, 6 How., 605. If there was error in the commencement of this action by reason of a defective notice or otherwise, it was cured by the appearance.

This advantage, among others, was not to be impaired by the withdrawal of the appearance. A personal appearance by the defendant, through his attorneys, converted into a personal suit that which was before a proceeding in

whom copies of writs could have been served, and that he neither absconded nor absented himself from his usual place of abode, in the sense of the statute, nor was his residence unknown; all of which facts were known to the parties in interest, including the respondents, who either purchased the property at the sale, or derived title from the person who did purchase.

By way of excuse for his want of diligence in his own affairs, the complainant says that the state of feeling was such against him in Nodaway County, on account of the part he took in 'the rebellion, that he could not, with any sort of safety, return to the County, and that in 1863 he removed his family to Tennessee, where he has since continued to reside. He also says, in continuation of this excuse, that being absent from the State, though a resident of the County, when the proceedings were instituted to deprive him of his rights, and no notice of the same having been given to any member of his family, he had not a day in court given him, and was in ignorance of the same until recently; and that as soon as practicable after ascertaining that said illegal proceedings were had, he took steps to assert his rights. The object of the bill is to set aside the sale, and to restore McQuiddy to the possession of the property. The only charge of fraud, in connection with the transaction disclosed in the bill, relates to the falsity of the affidavit on which the proceedings were based, The circuit court sustained a demurrer to the bill, and we think correctly.

In the view we take of the case we are not required to wade through the various statutes of Missouri, and the decisions of the courts of the State, in order to determine whether or not the proceedings in question are valid. The complainant is not, in our opinion, in a position to invoke the aid of a court of equity to decide that question. The bill presents the case of a man who chose to neglect his private interests for the purpose of devoting his time to the destruction of the government, complaining that his creditors enforced the collection of their debts on a wrong theory of his status, in consequence of entering the service of the enemy. There is no pretense that the debts were not meritorious, or that the judgments were entered for a larger amount than he owed. The real ground of complaint is that he was not an absent or absconding debtor, or a person whose residence was unknown, and was not, therefore, subject to the proceedings which were instituted against him. Whether this be so or not, it is easy enough to see in the anomalous condition of affairs existing at the time in Missouri, that creditors might honestly suppose that an individual leaving his State to destroy the government under which his rights of property were acquired, did not intend to return to it, and proceed to collect their debts under that supposition. The inquiry is whether a party acting in this way has stated such a case as entitles him to equitable relief, because his creditors, who ought to have been provided for before he left, mistook the condition he occupied, and treated him as a person who had permanently abandoned his home.

There is no averment that he did not have actual notice of the proceedings against him, in time to protect his rights. And it is fair to infer, in the absence of such an averment, that it

could not be truthfully made. It is difficult to suppose, when he moved his family to Tennessee, that he did not communicate with friends in Missouri who were acquainted with the true state of his affairs.

Besides, if the proceedings against him were irregular, why did he not seek his remedy under the statutes of Missouri, which concede to the party against whom judgment has been rendered on constructive notice only, the right to come in at any time within three years and file his petition for review? 2 R. S. of Missouri of 1855, p. 1280, secs. 13-15. If this had been done, and the state court had permitted the cases to be re-opened for the reasons set forth iu the bill, his remedy would have been complete, as the bill charges the purchasers at the sale with notice of all irregularities. It cannot be said that there was no opportunity of doing this, for the earliest judgment was in May, 1862, and both the others in November, 1863, and the war was substantially over in May, 1865. There is no averment of the want of this opportunity, nor is the absence of it aided by the general allegation, without specification of time or circumstance, that he could not with safety return to Nodaway County on account of existing prejudices. This might be true, and yet the opening of the judgments obtained by an attorney, as his personal presence was not required for that purpose. It were easy enough before the three years expired to communicate with St. Louis by letter, or even to go there, and it is very certain that he could not have been under any apprehension while there of being disturbed in the assertion of his legal rights.

But if the proceedings, instead of being irregular and voidable, are null and void, as they are characterized in the bill, the remedy at law is complete, for there is in such a condition of things nothing in the way of the successful maintenance of an action of ejectment, which will result not only in the restoration of the lands, but also their rents and profits.

Apart from all this, the maxim that he who seeks equity must do equity in the transaction in respect to which relief is sought, has not been observed by this complainant. While admitting his indebtedness, and that it has existed for ten years or more, he does not make a tender in court of what is justly due, although he is asking the court to set aside the proceedings by which this indebtedness was satisfied, on the ground of their absolute nullity. The willingness to pay what is found to be due on the adjustment of the accounts for rents and profits is not the sort of offer required of a person in the situation of this complainant.

Moreover, there has been an utter lack of personal diligence, which is required in such a case as this in order to bring into activity the powers of a court of equity. Equity always refuses to interfere where there has been gross laches in the prosecution of rights. There is no artificial rule on such a subject, but each case as it arises must be determined by its own particular circumstances. These proceedings were begun early in the war, and yet no move is made to disturb them until July, 1871, more than six years after hostilities ceased. Why this delay ? The complainant says he was in ignorance of them until recently, and that as soon as he ascertained them he took steps to assert his rights.