Thayer v. Dove

SUIT commenced before a justice of the peace. The summons was returnable on the 6th of June, 1846, and was served on the 4th of that month. The defendant moved for a dismissal of the suit, on the ground that the service of the summons was insufficient. This motion being overruled, the defendant moved for and obtained a continuance. The cause, on the day to which it was continued, was tried, and judgment rendered for the plaintiff. The defendant appealed to the Circuit Court, and there moved for a dismissal of the suit on the same ground on which his motion to dismiss, 568 before the justice, was made; and the motion was sustained. Held, that the defendant, by moving for and obtaining said continuance, waived the objection as to the service of the summons. Judgment reversed. See Wibright v. Wise, 4 Blackf. 137. — Early v. Patterson, id. 449. — Rittenour v. M‘Causland, 5 id. 540. — Dudley v. Fisher, 7 id. 553. — R. S. 1843, p. 866.