(after stating the facts). It is first contended by counsel for appellant that the judgment in favor of Bilby vacating the former judgment is void because no service in the proceeding was had upon Foohs; but he is precluded from, raising this question by the recitals of the record that “the attorney for said John Foohs has submitted a written argument or a statement to this court in this cause.” “Any action on the part of a defendant, except to object to the jurisdiction, which recognizes- the case as in court will amount to a general appearance.” 3 Cyc. 504. “Any taking part in the proceedings will constitute a general appearance.” 2 Enc. of Plead. & Prac., p. 639.
Counsel now insists that he only appeared for the purpose of objecting to the jurisdiction of the court over the person of Foohs; but the record does not show that he limited his appearance to that single question. On the contrary, it shows a general appearance. “A general or voluntary appearance is equivalent to service of process, and confers jurisdiction of the person on the court. Hence a defendant is estopped to object to want of such jurisdiction where he has appeared generally, and it is held, to be immaterial whether he be a resident or nonresident.” 3 Cyc. 515-517. “
It is not contended by Foohs that the counsel referred to in the record had no authority to enter his appearance. Hence the question of unauthorized appearance does not arise in the case.
It is next insisted by counsel for appellant that, Bilby having appealed from the judgment of the circuit court and the judgment having been affirmed, he was precluded from instituting proceedings to vacate it. This objection is not tenable. The appeal was merely a continuation of the suit below. An appeal does not have the effect of vacating the judgment of the court below. Even where a supersedeas is granted, an appeal does not have the effect of vacating a judgment, but only stays proceedings thereunder. Miller v. Nuckolls, 76 Ark. 485. If no supersedeas is granted, the judgment of the court below is suspended pending the appeal; and if the cause is reversed, the rights of the parties stand as though no action had ever taken place in the court below. Harrison v. Trader, 29 Ark. 85. On the other hand, if the judgment is affirmed, the rights of the parties will stand as if no appeal had been taken. Therefore, we do not see how the rights of a party to have a judgment set aside for the grounds set out in section 4431 of Kirby’s Digest can be affected by an appeal taken from the judgment. The appeal and the proceedings to set aside the judgment for the grounds mentioned in section 4431, supra, are wholly separate and independent proceedings, and are intended to effectuate different purposes. Therefore, it is difficult to perceive how the use of the one remedy will preclude the right to exercise the other.
Again, counsel for appellant urges a reversal on the ground that appellee had filed a prior application to vacate the judgment, but it is conceded that this was dismissed on his own motion without prejudice to a renewal of it, and we have no statute limiting the time within which the moving party must act to bring himself within the terms of section 4431 supra. In such cases there can be no objection to a second application. 23 Cyc. 975. Besides, the complaint herein was filed within one year after the former application was dismissed without prejudice on the motion of appellee.
We now come to the main question in the case. Appellee in his complaint to vacate the judgment rendered against him at the November term, 1907, of the' Arkansas Circuit Court alleged that he was a nonresident of the State, and that his attendance at the trial was not necessary, and that he was not expected to be present. That the conduct of the case was wholly in the hands of his attorney. That his attorney became ill and died a short time before the sitting of the court, and that he did not know of the illness and death of his attorney until after the judgment in question had been rendered, and-the court had adjourned for the term. He alleged further facts which constituted a valid cause of action in his behalf. The record shows that evidence was heard on the trial of the case. No bill of exceptions was filed, and this was necessary in order to bring into the record the facts proved or admitted on the trial. Hall v. Bonville, 36 Ark. 491; Berger v. Houghton, 84 Ark. 342, and cases cited.
Counsel for appellant filed a motion to set aside the judgment obtained by appellee vacating the former judgment. This was done at the same term of the court, and in his motion • counsel for appellant by exhibits and other papers filed therewith undertakes to -supply a record upon which he bases his right to a reversal of this case. Manifestly, this can not be done. We must review the alleged errors on the record as presented to the lower court; otherwise we might not review the case passed upon by the trial court but a wholly different one.
In the case of Hurlburt v. W. & W. Manufacturing Co., 38 Ark. at p. 597, the court said: “It is noted in the record that afterwards, during the same term, the defendants made two several motions, in effect to set aside the default, and tendered an answer. The motions and the answer tendered are set forth in the transcript, but are not incorporated in any bill of exceptions. Whilst it is proper for the record to show that motions of this class were made and acted upon, neither the grounds of the motions recited therein, nor the papers tendered with them, can be received as evidentiary of the facts therein stated. The grounds upon which the court based its discretion can not be known, nor can it be seen whether or not the court abused its discretion, without a bill of exceptions showing the matters set forth in the motions and papers tendered and the ■proof upon which they are based. It is not the office of the record proper to do that.” And for like reason the court held in the case of Cox v. Cooley, 88 Ark. 350, that a motion for a new trial can not be used, and has never been used, to incorporate anything into the record. See also Independence County v. Tomlinson, 93 Ark. 382.
This is conclusive of the present case. The errors complained of do not appear from the record itself, and there is nothing presented for our review.
The motion to vacate the judgment under section 4431 supra was heard on evidence, and, the evidence which the court heard and on which it acted in setting aside the judgment in question not being brought into the record, we must presume that every fact necessary to sustain the finding and judgment of the court was proved that could have been proved. Hempstead County v. Phillips, 79 Ark. 263, and cases cited.
“In the absence of a bill of exceptions,- it will be presumed that the court’s findings of fact were based on the evidence, where there is nothing in the record to rebut that presumption.” Swing v. Brinkley Car Works & Manufacturing Co., 78 Ark. 198.
The judgment will therefore be affirmed.