Roberts v. Burke

COLLIER, C. J. It is a settled principle in this court, that the defendant cannot, by a demurrer, object to the writ or initiatory process in a cause, whether the action be commenced by a capias or summons against the person, or an attachment against his estate. The demurrer, then, did not bring before the court the attachment in the present case, and the declaration being unquestionably good, it was properly overruled. The statute of 1807 enacts, “If any suit shall be commenced in any court for a less sum than such court can legally take cog [349] nizance of, or if any person shall demand a greater sum than is due, on purpose to evado this act, in either case, the plaintiff shall be non-suited, and pay costs: Provided always, that if the plaintiff, or any other person for him, will make an affidavit (to be filed in the clerk’s office,) that the sum for which the suit shall be brought, is really due, but that want of proof, or that the time limited for the recovery of any article, bars a recoveiy, in that case, such plaintiff shall have a verdict and judgment for what appears to be legally proved, any thing to the contrary notwithstanding.” In Cummings v. Edmundson, adm’r, [5 Porter’s Rep. 145,] this court say the act cited “contemplates two distinct classes of cases, in one of which the court trying the cause has no discretion, but must non-suit the plaintiff; but in the other, it is not made obligatory so to proceed, unless it shall appear that a sum is demanded beyond what is due, on purpose to evade the act'.” In the case before us, the attachment and affidavit claim a less sum than the circuit court could legally take cognizance of; the defendant might, for this cause, have moved to non-suit the plaintiff, or the court of its own motion might have caused such a judgment to be entered. But it was competent for the defendant to waive all defects in the original process, or to dispense with it entirely; and such we think was the legal effect of the demurrer and pleas to the declaration. The attachment, then, being placed out of view, the several sums, expressed in the declaration, were sufficient in the aggregate to give the court jurisdiction, and prevent a non-suit under the statute. This conclusion is not opposed by the familiar principle, that consent cannot give jurisdiction. That question does not arise in the posture in which this case is presented. The declaration we have seen, is unobjectionable, and by demurring, the defendant made it impossible for this court to look to the attachment. The judgment must, therefore, be affirmed.