1 Colo. 509 | Colo. | 1872
It appears to us that the withdrawal of the appearance which was entered on the part of the plaintiff in error in the court below, whether it be regarded as the act of the attorneys merely or as the act of the defendant himself, left the plaintiffs below in precisely the same position as if it had not been withdrawn or in any manner qualified. If we are to give any effect to the words of the record of this proceeding, they impart a stipulation by the defendant, or at least a condition imposed by the court, that the plaintiffs shall not lose any advantage which, by reason of the appearance, they had gained. The appearance, to all intents and purposes, still stood as a waiver of process, and sufficiently supported the judgment nil dicit, which was afterward given.
And this, we think, also disposes of the second question which is presented by counsel, for, if we consider the appearance which was interposed on behalf of the defend
Therefore, the attachment which, in the first instance, was but a proceeding in rem, and which, by the defendant’s appearance, had assumed the character of an action in personam, still remained of the same character after the appearance was withdrawn, and the plaintiffs were still entitled to have judgment for whatever damages they might establish under their declaration within the limit of the ad damnum laid therein, whether the causes of action counted upon were the same as those mentioned in the affidavit or different. The position of the plaintiffs was the same as if the defendant had plead to the action and the issue had been tried by a jury; and, in such cases, it has uniformly, we believe, been held that the plaintiff’s recovery is not limited to the amount or causes of action specified in the affidavit.
We see no error in the record. The judgment of the court below is, therefore, affirmed.
Affirmed.
