Healy v. C. Aultman & Co.

Lake, Ch. J. We think the assignment of errors sufficient to enable us to review the questions presented to the district court by the petition in error filed therein. The first of the errors complained of was in permitting an amended petition to be filed after the original had been stricken from the file, on motion of the plaintiff in error, on account of a defective verification. There was certainly no error in this; and even if there were, it could not now be taken advantage of, inasmuch as no exception was taken to the order. The principal question, however, appears to relate to the jurisdiction of the county court over the person of the then defendant. And this point seems to be based upon the idea that, after the amended petition was filed, the service of a new summons was necessary before the case could be proceeded with. But no new summons was requisite, as that by which jurisdiction was first acquired was still on the files of the court, with its efficiency wholly unchallenged. The defendant therefore was still before the court, and bound by all orders made in the further progress of the case, unless reversed on exceptions duly taken. Besides, by moving for an order upon the plaintiffs to give security for costs, he admit [352] ted the jurisdiction of the court over him, and which could be lost only by an actual dismissal of the action. We see no error in the record, and the judgment of the court below is therefore affirmed, Judgment affirmed.