Harker v. Fahie

Boise, C. J. This is a suit in chancery, where a decree was rendered for tbe plaintiff Tbe service was not sufficient, as to time, but defendant voluntarily appeared, and tbe question here is: Did such an appearance by tbe defendant waive bis right to time to plead, given him by statute, as in ordinary cases % Service was bad on tbe 24th day of May, and the-return day was the second Monday in June following, which, was less than twenty days. The Statute of 1859, page 18,, provides that in suits in equity, as well as actions at law, a defendant may be brought into court either by tbe service of' tbe complaint and notice or by subpoena, as provided in the Statute, title 1, of chapter 1, regulating proceedings in suits in equity. Such statute provides that no defendant in equity shall be compelled to plead, answer, or demur in less than. [90] twenty days after the service on him. That statute is found on page 198, section 22, of the bound statutes, and further provides that if the subpoena shall have been served thirty days before the return day thereof, the defendant shall file his plea, demurrer or answer to the bill on or before the third day of the term at which the process is returnable. If it shall have been served less than thirty days before such return day, then defendant shall file his plea, demurrer, or answer, within thirty days next after such return day. I think the 'statute of 1859, referred to, only modified the latter statute, so as to shorten the time of service from thirty to twenty days. Where plaintiff chose to commence his suit by notice instead of by subpoena — the jyraetice in chancery remains as before — defendant was to plead, answer, or demur, on the third day of the return term if service had been thirty days; or, within thirty days after the return day, if service had been less than thirty days before return day. The evident intention of the legislature was to enable parties to bring suits in equity by service of notice instead of subpoena; and if no provision as to time of service in chancery had been made, then ten days’ service 'would have been sufficient, as in other cases of notice; but in cases in chancery, twenty days is fixed for the time of service of notice; and if it had been the intention to otherwise change the chancery practice, it would have been set forth. Then we would have had two modes of practice in chancery, which would lead to confusion. I think the better construction of these statutes is that the new statute only shortened the time of service, and left the practice in other respects as it was. It is also insisted that as the defendant appeared voluntarily and made a motion in the ease, he not only waived all informality of service of process, but also his time to plead. This would be carrying the effect of an appearance too 'far. If a defendant appear voluntarily in court, he is under no disabilities he would not be under if regularly brought into court by due service of process. If brought into court by subpoena or notice, he would have the [91] time which the law allows him in which to plead, and we think he should have the same right if he appears and waives service. Judgment is reversed.