Middleton v. Duffy

Settle, J. The application to set aside proceedings for irregularity should be made as early as possible, or as it is commonly said, in the first instance ; and when there has been any irregularity, if the party overlook it and take subsequent steps in the cause, ho cannot afterwards revert back to the irregularity and object to it. 1 Tidd Pr. 513. The use of a summons is to bring a party into Court, but if a defendant sees proper to appear without a summons, or upon a defective summons, he thereby waives all irregularity in that respect. Here, it appears from the record, that the defendants, at the return term, notwithstanding the return of the summons by the sheriff, endorsed “ too late to hand,” applied to the Court and obtained an order to take the deposition of one Rhodes to be read in evidence on the trial of the cause. However, as a second summons w'as issued returnable to Eall Term, 1872, and on it the sheriff returned “served on Charles and Nancy C. Duffy only,” and the record at that term shows that the defendants appeared by attorney. At Spring Term, 1873, the record shows that the defendants appeared by counsel and ob-' tained from the Court further time to file their answers. At Spring Term, 1874, Nancy C. Duffy moved the Court to strike her name from the action on the ground that there had been no personal service of the summons upon her. Affidavits were then filed on both sides, but they all establish the fact that the sheriff, after leaving copies of the summons at the house of the defendants, with their daughter, in the morning, met the defendants, later in the day, returning home, when he informed them what he had done, and proposed to step from their gate to their house, fifty yards distant, [76] and get the summons and serve it personally on Mrs. Murphy, ■when she said he need not take that trouble, as she would accept it as a good service. So, from 1872 to 1874, we hear no complaint of the summons, but at each term of the Court the parties “take subsequent steps in the cause.” Upon these facts we think the order of his Honor was erroneous. Let this be certified, &c. Per Curiam. Order reversed.