Smith v. Bulkley

RANDALL, C. J., delivered the opinion of the court. This suit was commenced under the Code by the issuing of a summons, and an attachment was also issued and levied upon defendant’s property. Defendant was a non-resident. There was no personal service of process, and no publication of summons. [66] The- defendant, however, appeared by two attorneys, and pleaded to the complaint, and two trials were had, each of which resulted in a verdict for plaintiff, a new trial having-been granted after the first verdict on the motion of defendant by his attorney. No exceptions appear to have been taken, and the only question made upon the appeal is, that there was no service or publication of the summons, and upon this ground defendant insists that there was no jurisdiction obtained by the Circuit Court, and, therefore, the judgment should be reversed. It has been uniformly held by this court, and by the courts of all the States and of the United States, that a general appearance of the defendant in person, or by attorney, in the suit, where no service was had, or where the service was defective, cures any defect of service, and gives jurisdiction as effectually as if service in person had been made. The judgment is affirmed with costs, to be taxed under the Code, in favor of the plaintiff.