Cron v. Krones

By the Court, Paine, J. The circuit court, upon a common law certiorari, reversed the judgment of a justice of the peace, for the reason, as it would appear from the arguments here, that the defendant was sheriff of the county, and the summons was served on him by a constable. It seems to have been supposed that section 120, chap. 13, R. S., which provides that when the sheriff is a party the coroner shall serve the process, &c., made the service in this case illegal, But it is very evident that this provision of the statute relates only to proceedings in courts of record. And where the sheriff is a party to a suit be [403] fore a justice, a constable is clearly authorized to serve tbe process. But it appears from the return of the justice, that the parties “ appeared,” which, in the absence of any qualification, must be held a general appearance, and this is a waiver of any defect in the service, if there had been any. The objection is further made that the justice lost jurisdiction by failing to state the time and place to which the cause was adjourned from the 6th of September. The return shows that both time and place were stated at that adjournment; so that the record fails to sustain the objection. True, it appears that on the first adjournment, to September 6th, the place was not stated. But whatever effect this might have had, if the defendant had not appeared, yet as he did appear on that day, and applied for a further adjournment, the defect was waived, and the judgment ought not to have been reversed. The judgment of the circuit court is reversed, with costs, and that of the justice affirmed.