Upon the affidavits filed, the court will permit the attorney who has appeared for the appellees to withdraw his appearance. But this leave will not authorize a motion to dismiss for want of a citation, nor for mere irregularity in its service, provided the appeal is in other respects regularly brought up and authorized by law. The citation is merely notice to the party and his appearance in person or by attorney is an admission of notice on the record, and he cannot afterwards withdraw it.
But the appearance does not preclude the party from moving to dismiss for the want of jurisdiction, or any other sufficient ground, except for the one above mentioned. And a motion of that kind is, in the practice of this court, usually and most properly made by the attorney after his appearance is entered on the docket. And if such a motion is intended to be made in this case, the withdrawal of the appearance is not necessary to give the appellee a right to make it.
The serious objections which often exist to permitting an attorney to strike out his appearance for a defendant in a court exercising original jurisdiction, do not apply in an appellate court. And under the rules of this court, it is, in general, of no importance to the appellant, whether an appearance for the appellee is or is not entered on the record. For if he is entitled to his appeal, and has prosecuted it to this court according to law, the refusal or omission of the appellee to appear will not delay the trial, and a judgment against him will be as conclusive as if an appearance for him had been entered on the docket, and the case argued by his counsel.
On consideration of the motion by Mr. Baldwin, for leave to strike out his appearance, which had been improvidently entered (by an agent of his) for the appellees in this cause, and of the arguments of counsel thereupon had, as well against as in support of the motion, it is now here ordered by the court, that the leave prayed for be and the same is hereby granted.
The case was afterwards dismissed, upon the same grounds as in the preceding case of The United States v. Curry and Garland.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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