Ives v. Finch

Waite, J. The principle, involved in the present case is, whether the omission of the defendant, to procure a surety upon his bond, rendered the appeal void, or only voidable, at the election of the plaintiff. And we are of opinion, that the latter effect only was produced. Had the demand been less than seven dollars, or the appeal taken to the superior court, the appeal would have been void. In either case, the court would not have had jurisdiction, and would have been perfectly justified, in ordering the cause stricken from the docket. But the cause was appealable, and the appeal was taken to the right court, and, had the proceedings been regular, that court was bound to take cognizance of it. The only [106] objection, urged against those proceedings, is, that the defendant neglected to procure a surety, to unite with him, in the bond given on the appeal. The provision of the statute, requiring a bond, with surety, was made solely for the benefit of the obligee; and it was competent for him, if he pleased, to waive a strict compliance with the statute. Suppose the plaintiff1 had been entirely satisfied, that the defendant’s bond was abundantly sufficient, and had expressly waived the requirement of any farther security; could he, afterward, treat the appeal as a nullity, and procure the cause to be erased from the docket ? It is a frequent practice, for parties in suits, to waive a strict compliance with those requirements of the law made solely for their benefit. Under a former statute, declaring that a contract, made upon an usurious consideration, should be utterly void, it was holden, that the statute was made, for the benefit of the party liable upon the contract^ and that he might, at his option, avoid the security, or waive the benefit of the law. Wales v. Webb, 5 Conn. R., 154. But, where an appeal is taken, in a cause not appealable, or to a court not having jurisdiction, it is not in the power of the parties, to confer jurisdiction, by waiving all objections ; and the court, under such circumstances, will dismiss the cause from the docket, as soon as the want of jurisdiction is discovered. The law prescribes the mode, in which service of civil process shall be made, and where the requirements of the law have not been complied with, the party, on whom the defective service was made, may avail himself of the omission. But then, he must do it in proper time, and in a proper manner; and if he omit to do so, and appear in the cause, and suffer it to proceed, without objection, on his part, he will be considered, as having waived his objection. [107] In the present case, the proper mode of taking advantage of the error in the appeal, was by a plea in abatement, which should have been filed, within the time allowed for filing such pleas. But, instead of doing this, the plaintiff, without any objection on his part, suffered the appeal to be taken, the bond to be given, the cause to be entered on the docket of the county court, his attorney’s appearance to be entered, and the cause to be continued for several terms, in that court, and then, upon the eve of a trial, moved to have the cause erased from the docket. In our opinion, the objection to the proceedings on the appeal, came entirely too late, and the county court erred, in ordering the cause to be stricken from the docket; and we so advise the superior court. In this opinion, the other judges concurred. Judgment reversed.