Converse v. Warren

Woodward, J. We think that the sheriff’s return to the notice, was insufficient to place the defendant in court. The copies left at the place of business, and at the sleeping room of defendant, must go for nothing. It is very clear, that the law does not recognize any such mode of service. The place where the copy is left, must be returned by the sheriff as defendant’s “ usual place of residence,” in which case, the copy must be left with some member of the family more than fourteen years of age. The return must further show, at whose house, and the name of the person with whom, the copy is left, or a sufficient reason must be given for the omission. The sheriff returns in this case, that he — 171 — “ left a copy with Mrs. Gay, at defendant’s boarding-house, being the residence of E. E. Gay — the above-named Mrs. Gay being over fourteen years of age, and being a member of the family of E. E. Gay.” This return is defective in not showing that the house of E. E. Gay was the usual place of residence of defendant, and that Mrs. Gay was a member of defendant’s family. It is hardly necessary for us to point out that Mr. Gay’s may have been his boarding-house, 'without being defendant’s usual place of residence, and that Mrs. Gay may have been a member of the family of E. E. Gay, without being a member of the same family with defendant-We do not intend to determine here that the defendant must be the head of the family, with a member of which the copy is left, but only that they must be of the same family. The words “ the family,” in the statute, mean the family of which the defendant is a ''member. The motion to set aside the proceedings having been overruled, the defendant appeared to the action, filed his answer, and the trial proceeded as though he was regularly brought into court. Has he, by such appearance, waived his right to question the correctness of the decision of the court on the motion to set aside the sheriff’s return ? It is claimed by defendant, that this right has not been waived, as his appearance was after the objection had been taken and overruled by the court; and that if the decision of the court was erroneous, he should not lose the benefit of his exceptions to it by an appearance which was the consequence of such erroneous decision, and which was in a manner enforced. The plaintiff, on the other hand, contends that the objection was waived by the appearance, and if not waived, that the error was of such a character that the substantial rights of defendant have not-been prejudiced by it; and that he has had a fair trial on the merits, with full opportunity of making his defence. There can be no question but that the doctrine is plainly laid down in decisions almost without number, that by appearance and pleading, defendant waives all defects in the process as well as in the service thereof. Bell v. Pierson, — 172 — Morris, 28; Hall v. Biever, Morris, 113; Rowley v. Stoddart, 7 Johns. 207; Pixley v. Winchell, 7 Cowen, 366; Knox v. Summers, 3 Cranch, 496; Buckingham v. McLean, 13 How. 150. We find the doctrine laid down, as given in many of tho earlier reported decisions, that when the defendant has appeared and is in court, there is an end of the mesne process. 3 Term Rep. 611; 1 Stra. 155. Prom this the courts have also inferred, that after the defendant has appeared, he cannot take advantage of any error in the process, or the service of it. Fox v. Money, 1 B & P. 250; Davis v. Owen, 1 Ib. 344. Hence, an application to set aside proceedings for irregularity, must be made as early as possible, and, as it is commonly said, in the first instance ; and where there has been an irregularity, and the party overlooks it, and takes subsequent steps in the cause, he cannot afterwards revert back to the irregularity and object to it. Pierson v. Rawlings, 1 East, 77; Diargent v. Vivant, 1 Ib. 330; 1 Payne & Davies Practice, 366. In Diargent v. Vivant, 1 East, 330, the defendant had put in special bail: on a rule to show cause why the bail bond should not be delivered up to be canceled, 'on account of' a defect in the affidavit to hold to bail, Lord Kenyon, O. J., held, that the affidavit to hold to bail, is process. Any irregularity in it must be taken advantage of in the first instance, and is waived where defendant voluntarily does any act submitting to such process, instead of taking steps to avail himself of the irregularity. Suffering the return term to pass, or putting in bail voluntarily, is a waiver. The court further say, that if defendant is under arrest, his consent to giving the bail bond, would not be binding on him, because it would be considered as given under duress. Where he voluntarily gives bail, it is a waiver of the irregularity in the affidavit. See also, Norton v. Danvers, 7 Durnford & East, 371. The doctrine that appearance and pleading cures all defects in the process and service, must be taken with some degree of qualification. It certainly cures all defects in the process, and the service, not objected to in proper time and manner. All irregularity in — 173 — judicial proceedings is waived by taking any subsequent step in the cause, without objection. In Beecher v. James, 2 Scam. 462, it is held, that a motion to' quash an attachment must be made at the return term. By appearance and pleadingj without motion to quash, the irregularity is waived. So in Easton v. Altum, 1 Scam. 210, it is held, that where the defendant appears, or is in court without objection, he waives all irregularities as to the mode the plaintiff has resorted to to compel his attendance. So also, in Pearce v. Severn, Ib. 269, where the process was irregular, the court held, that if no objection is made, the irregularity was waived; and that it was not like a case of defective jurisdiction over the subject matter, nor where jurisdiction is given to an inferior court, which must proceed in the manner pointed out by the statute, or its proceedings will be coram, non judice and void. If the defendant takes objections to the error or irregularity in the process or proceedings, in the first instance, and before he has appeared to the action, and the objection is overruled, does he waive the objection by taking any other step? The objection to the sheriff’s return, in the present cause, was taken in the proper time and manner. It should have been sustained by the court, and the sheriff’s return ’set aside. The District Court, however, decided the return to be “ good, and sufficient to place the defendant in court, subject to plead.” Now it was certainly within the choice of the defendant, to refuse to appear and plead to the action, and to suffer judgment to be rendered against him on the overruling his motion. By so doing, he could have tested in this court, the correctness of the decision; or, without submitting necessarily to the judgment against him, we are not prepared to decide, that he might not have taken an appeal to this court, from the judgment of the District Court on his motion, under sections 1557 and 1985 of the Code. But where the party, instead of suffering judgment on the overruling of the motion, as in this case, fully appears to the action, and a trial is had, a question is raised for our consideration, for which, we confess, we have found — 174 — no very ready solution in any of the adjudicated cases to which we have had access. The service on defendant was clearly insufficient. It was an irregularity or defect which would not, however, have caused .a dismissal of the suit. The only result of granting the defendant’s motion, would have been a continuance of the cause, until defendant could have been properly served, and placed within the jurisdiction of the court. Does, then, the appearance and pleading obviate the obj ection ? Or, shall defendant, even after trial and judgment against him, be permitted in this court, to go back to the decision of the court on the motion to set aside the sheriff’s return ? It would seem from the case of Hussey v. Wilson, 5 Durnford & East, 254, that where there is a radical defect in the proceedings to hold to bail, it will not be considered as waived by the defendant putting in bail, before taking exception to the defect. The court held, that there is a clear distinction between a mere irregularity in the mode and time of proceeding, and a complete defect in the proceedings themselves. The affidavit which was the foundation -of the proceedings, being defective, the bail bond was ordered to be canceled. Where an objection is taken, which would be fatal to the proceedings, and for which they should be dismissed, and it is overruled by the court, and the • defendant afterwards appears and pleads to the suit, it.would seem that the objection is not waived by the subsequent appearance. To this effect, is the case of Secrest v. Arnett, 5 Blackford, 366, cited by appellant’s counsel. In an action before a justice of the, peace, defendant moved to dismiss the suit, because the Christian names of defendants were not stated in the writ. The motion was overruled. The plaintiffs then filed their declaration, stating their Christian names. The defendant pleaded to the action, and on trial, judgment was rendered for tlie plaintiffs. The Circuit Court, on motion, dismissed the suit, for the reason urged by defendant before the justice. On error to the Supreme Court, the plaintiffs contended that the defect in the writ was cured by the plea, before the justice. Blackford, J., says: “We do not think so. The objection to the writ was made and overruled — 175 — before tbe appearance and plea to tbe suit. There was, therefore, no waiver of the objection.” In Wheeler v. Lampman, 14 Johnson, 481, the summons was served on defendant by a constable, in an action before a justice of the peace. The return did not show the date of the service, as required by the law of New York. The defendant appeared, and objected to the return. The objection was overruled by the justice, who decided that the return was sufficient. Issue was then joined, and judgment was rendered for the plaintiff. The Supreme Court held, that the appearance of the defendant in the justice’s court, merely for the purpose of objecting to the constable’s return, was not a waiver of the irregularity of the return. The law was peremptory that the time when the summons is served, shall be returned thereupon, and its injunctions must be obeyed. The court further says: “ If the defendant had waived the irregularity, by pleading to the declaration, without objecting to the return, it would have been too late to make the objection now. In Shannon v. Comstock, 21 Wendell, 457, the defendants were arrested on a warrant, issued in a suit before a justice of the peace, on an affidavit that they were non-residents of the state. On being brought before the justice, before pleading to the action, they moved to quash the proceedings, on the ground that they were residents of the city of New York, and not liable to arrest by warrant. The plaintiff, for the purpose of the motion, admitted that the defendants were residents of the county in which the suit was brought. The justice refused to grant the motion. After plea in abatement overrated, defendants pleaded the general issue, and on trial, judgment was rendered lor plaintiff. The Supreme Court held, that the proceedings should have been set aside for irregularity, and that it was no answer that defendants finally pleaded in bar. “Such an answer,” they say, “must rest on the ground of voluntary waiver. In this case, the propriety of the arrest was questioned at once, on admitted facts, and defendants, being in custody, were compelled to plead over.” In the case of Wheeler v. Lampman, though it does not seem clear to us, that the objection taken to the officer’s — 176 — return, was such a one as ought to have been fatal to the suit, yet the court bold, that the statute is peremptory in requiring the time of the service to be indorsed on the summons. The failure of the constable to state the time in his return, was at all events, such a defect, that the appearance and pleading by defendant, did not supply its place, or amount to a waiver of it. In the case of Secrest v. Arnett, and of Shannon v. Comstock, the defects in the proceedings were such as the court adjudged fatal, and sufficient to cause the dismissal of the suits. They would have been considered as waived, if the parties had appeared and pleaded, without making objection to them. The case of Switzer v. Gowdy, Morris, 248, was an action of trespass, commenced in Linn county, in which a capias was issued to Cedar county, and defendant arrested there. The defendant appeared by attorney, and moved to quash the writ. The court overruled the motion. The defendant then pleaded not guilty, and afterwards withdrew his plea, and by agreement of counsel, submitted to judgment, with stay of execution. There was an entry that defendant waived no error by the agreement, and that plaintiff, at the time, denied his right to make the reservation. The court, not being unanimous, and expressing no opinion as to whether the writ should have been quashed, were all of opinion, that admitting the defendant was wrongly arrested, the error was cured by the agreement entered into by the parties by their attorneys. They further say: “ Had the suit been commenced by summons, his appearance alone would have been a waiver of all antecedent objections. Such, however, is not the case where the appearance is not voluntary. Here the defendant not only appeared by his counsel, but gave his consent, through the same medium, that the judgment, for a specified amount, should be rendered against him. This cures all defects and irregularities in the previous proceedings.” It will be perceived, that the court base their decision on the agreement, and not on the appearance of defendant, after his objection to the writ. W e have sought for some general rule or principle, on — 177 — which the cases above cited, have been determined, which will be equally applicable to the one under consideration. It will be seen that the rule is incorrect, as laid down in its broadest terms, that appearance and pleading cures all irregularities of process. Objections taken in proper time and manner, to the process and its service, are not waived by pleading or taking subsequent steps in the cause. And where the defect is in the proceedings themselves, it is not waived by taking such subsequent steps; and the objection has been held good, when made after appearance. After the best consideration we have been able to give to the subject, we are inclined to hold, that the defendant, having taken objection to the defective service of process in the proper time and manner, and his objection having been erroneously overruled by the court, and he required to plead to the action, did not waive or lose the benefit of his objection, by appearing and pleading. Although defendant appeared and filed his answer to the petition in the District Court, yet such appearance must be considered to have been made under protest, and subject to <the exception taken to the decision of the court, on the motion to set aside the return. The appearance will not be considered voluntary, where it has been made in consequence of, or in obedience to, an erroneous decision of the court, on so material and important question, as whether a party defendant has been properly served with notice of suit, and his person brought within its jurisdiction. An appearance has been held, not to supply the lack of the Christian names of the plaintiffs in the writ. 5 Blackford, 866. It has been held, that it did not supply the lack of a proper date to the constable’s return, (14 Johns. 481;) and that it did not render defendants liable to arrest as non-residents, who were admitted residents of the county in which the suit was brought. 21 Wendell, 457. So, we think, in this case, that the appearance and pleading could not be effectually urged against a party, who has resisted its jurisdiction in the proper manner and at the proper time. The service of notice, under our practice, stands instead of the arrest of the body, under the common — 178 — law ; and it was never held, that a defendant, by appearing, waived tbe irregularity of tbe process or arrest, if objection was taken in time. If the defendant bas been illegally arrested, as by breaking open tbe door of bis dwelling, tlie court may discharge him from custody. Lee v. Gansel, 1 Cowp. 9. A majority of the court are of the opinion, nevertheless, that the defendant cannot assign this ruling of the court, as an error, in view of the actual history and state of the cause. It is true that this is a jurisdictional matter, but it is to be remembered that service, under our law, is only to give a party notice, and the legal time to prepare for trial; and that it is not, in all respects, and in all its incidents, equivalent to the former arrest of the body; and, also, tbat if tbe service bad been beld insufficient by tbe court below, tbis would not have led to a dismissal of tbe cause, but only to a continuance, for a new service. Now, at tbat term, which was tbe first term, tbe defendant’s counsel applied for, and obtained a continuance. And, at tbe second term, tbe cause was again continued, in order to obtain the sworn replication of tbe plaintiff, which was called for by tbe defendant; so tbat tbe latter party bad, to prepare for trial, more than all tbe time wbicb be would bave obtained ordinarily, bad tbe service been held insufficient. If the defendant had been driven into a trial at the first term, and verdict and judgment bad been against him, we think, he would have been authorized to make the objection in this court; for then be would bave stood in tbe position of having made his objection in proper time and manner, and of being-driven into a trial, without tbe legal opportunity for preparation. But to'permit the party to take the objection now, after be bas bad all tbe time, and all tbe opportunity, which, he would have had by granting bis motion — after a full and fair trial, under ample time for preparation — would bring a reproach upon tbe law wbicb would be richly merited. The case comes within that class, in which it is often held, that an error which works no injury, shall not vitiate. Whatever slight departure there may be in tbis view from strict — 179 — logical or legal reasoning, it is compensated by the above considerations; that the cause has been pending some three or four terms; that it was twice continued, and once on defendant’s motion; that he has had all the time for preparation, that he could have gained in any other manner; and thus that he cannot claim to have suffered injury by being pressed into a trial, without legal notice. Under these circumstances, it seems to a majority of the court, to be an abuse of the law, to reverse all that has been done, and send the parties back to commence again, and travel over the same ground. The remaining error assigned, arises on the following circumstances: The defendant objected to the note offered, being permitted to go before the jury as evidence. The objection was, that there was a variance between that declared on and that offered — the variance existing in'the date of the note. Upon this question, whether there was a variance, and whether the note should be shown as evidence to the jury, the plaintiff called the defendant himself, to testify. The witness being turned over to the defendant’s counsel, he inquired as to the consideration, and as to his defence to it, and claimed that his answer should go to the jury. The plaintiff objecting, the court sustained the objection. In this, there was no error. The inquiry upon which the defendant was introduced as a witness, was before the court only, and was a preliminary question, whether the note could be offered in evidence. The judgment of the District Court is affirmed. Wright, 0. J. I desire to say, that I think the service upon the defendant was clearly defective,' for the reasons stated in the foregoing opinion, but hold that by pleading over and going to trial, he waived the right to afterwards object to the sufficiency of such service. To place this part of the case upon this simple, broad ground, would be to me inore satisfactory, than to have the decision turn upon what afterwards, through several terms, transpired in this particular 1 case. I am clearly of the opinion, that under our — 180 — law and system of practice, as recognized by our earliest and latest decisions, tbe defendant, if be would ask tbe decision of this court upon sucb a question, must stand upon bis motion, and leave tbe plaintiff to take bis own course in tbe cause; and that by pleading over, be waives tbe objection, whether tbe trial is at tbe same or a subsequent term. He -is not compelled to plead over, or make any further appearance. If be does so, however, be thus voluntarily submits to tbe jurisdiction, and bis right to complain of tbe decision on bis motion, is, by that act, as completely taken away, as it is by any number of after continuances, motions, or trials. Hotchkiss v. Thompson, Morris, 156; Harmon v. Chandler, 3 Iowa, 151; Mitchell v. Wiscotta Land Co., Ib. 210. And, entertaining this opinion, I, of course, have no difficulty in concurring in tbe view taken, that after rejeeated continuances, and after tbe defendant has bad ample time to prepare bis defence, be should not be permitted to now claim that be was not properly in court. If one forward step, after tbe overruling of bis motion, would operate as a waiver, then, quite clearly, would several sucb steps, running through after terms of tbe court, as shown in tbe history of this cause.