Tripp v. Howe

The opinion of the court was delivered by Wheeler, J. Perhaps, upon seasonable objection, the writ in this case would have been adjudged bad because it did not require the officer to take a bond for a return of the property, as well as for the prosecution of the replevin to effect and the paynient of costs and damages, and the bond have been held insufficient for want of surety. But these irregularities did not make the proceedings so void that the court did not have jurisdiction of the parties and of the subject-matter of the suit,, and were such that the defendant could waive them. By omitting to take advantage of them by motion or plea within the time limited by the rules of court for filing dilatory pleas, and, also, by pleading to the merits of the action, the defendant did waive them, and [525] was not entitled, of right, to take advantage of them afterward. The want of a surety to the bond may have been quite a material defect, and probably the court would have had power to permit the defendant to move to dismiss on account of that defect, out of the ordinary time, if the plaintiff would not make it good by filing a new bond ; but no move in that direction appears to have been made, and upon the motion that was made, at the time it was made, the decision was correct. Judgment affirmed.