Waterhouse v. Freeman

By the Court, PAINE, J. The order denying the jfiaintiff’s motion for judgment, and allowing the defendants to file their demurrer on the payment of ten dollars costs, from which the defendants have appealed, must be affirmed. The only reason urged for reversing it is, that the notice of the motion for judgment given by the plaintiff, did not authorize such a judgment as he asked for. But concede it, and the answer is, that the court denied him such a judgment, or any judgment at all. The balance of the order is in the defendants’ favor. The demurrer last served, by counsel who were not attorneys of record, was properly returned by the plaintiff’s attorney. He was not bound to recognize them as having anything to do with the case, until they were regularly substituted for the attorneys of record. It was therefore a matter of discretion with the court, after the time for answering the amended complaint had expired, to determine upon what 'terms the defendants might plead. There is therefore nothing in this order of which they can complain. Neither is the position well taken, that because an order of arrest may have been improperly issued in an action on a contract, the court had therefore no jurisdiction. The order of arrest is not the process by which the suit is commenced, [341] but is a provisional remedy of an. ancillary character. If improperly issued, it may be recalled on motion, but it not deprive the court of jurisdiction to proceed in the action. All objection to the variance between the summons and complaint, if such there was, was waived by the appearance of the defendants and their demurring to the complaint. The orders appealed from are affirmed, with costs.