Carlisle v. Weston

Morton J. delivered the opinion of the Court. Formerly a coroner was authorized to serve process when the sheriff or his deputy was a party. St. 1783, c. 43, § 1 ; Merchants Bank v. Cook, 4 Pick. 410. But by the Revised Statutes, c. 14, § 97, this power was modified, and, in some respects, extended ; so that a coroner may now serve any writ in which the sheriff is interested. The service of process by a coroner, being a special authority, and not coming within the general duties of that officer, all the facts necessary to give him the power should be made to appear in the writ itself; and a general direction to him is not sufficient. Case v. Humphrey, 6 Connect R. 139. This omission too is a defect, of which, as it appears on the record, the Court will ex officio take notice, or of which the defendant may take advantage on motion or in error. Wood v. Ross, 11 Mass. R. 273 ; Bunn v. Thomas, 2 Johns. R 190 ; Lawrence v. Smith, 5 Mass. R. 362 ; Tingley v. Bateman & Tr. 10 Mass. R. 344 ; Taylor v. Phillips, 3 East, 155 ; Roberts v. Monkhouse, 8 East, 547. The only question in the present case is, whether the defendant, by his appearance and pleading to the action, has cured the defect in the service. The general rule upon this subject is, that irregularities and defects may be. waived, but mere nullities cannot be cured, or restored to life, inasmuch as they never possessed any legal vitality. Jurisdiction cannot be given by consent of parties. 3 Chitty’s Gen. Pract. 524. The cause of action and the parties, were clearly within the jurisdiction of the Court. The service of the writ was made by the officer to whom it was directed, and who, in certain cases, was authorized to serve such precepts. And although it does not appear affirmatively, that the sheriff was interested [537] m the suit, so it does not appear negatively that he was not interested. The defendant, by appearing and pleading to the action, admits the jurisdiction, that is, in this case, adm. ts the fact which is necessary to make the service valid. It is an elementary rule of pleading, that a plea to the jurisdiction is the first in the order of pleading ; and that any plea which refers to the court any other question, is a tacit admis sion that the court has a right to judge in the cause, and is a waiver of all exception to the jurisdiction. Gould’s Pl. 231 ; 1 Chitty’s Pl. 478. Wherever it appears upon the record, that the court has no jurisdiction, nothing which the parties may do or omit to do will give it; but where the want of jurisdiction must be shown by proof aliunde, or where the particular facts giving the jurisdiction may exist consistently with the record, a plea to the action is a waiver of any exception to the jurisdiction. In the case of Gage v. Gannet, 10 Mass. R. 176, which was an action by a county treasurer against the clerk of the courts on an official bond, the court say, “ It does not appear on the face of the record, that the county is directly interested. But the defendants have waived this exception, by appearing and pleading to the action in the Common Pleas.” The case of Ripley v. Warren, 2 Pick. 592, is a much stronger case than the present. There the writ bore teste of one of the associate justices of the Common Pleas, contrary to a provision of the constitution ; and yet the Court say, “We think we are well warranted in holding that the writ in this case, though originally defective, has been made good by the defendant himself, who has submitted to it without questioning its validity, through all but the last stage of the pro cess.” The irregularity in the service of this writ could do the defendant no possible injury. He was seasonably notified of the commencement of the action, appeared on the return day of the writ, made such motions and filed such pleas as he thought best adapted to protect his legal rights, and now has open to him every ground of defence, and may avail himself of every legal exception which he could have done, had the writ al [538] leged that the sheriff was interested, or had it been d rected to and served by the sheriff himself. On the whole, we are well satisfied, that this was an it regularity which the defendant might waive, and that by appearing and pleading to the action, he has cured the defect in the service. Motion overruled.