Hanson v. Hoitt

Parker, C. J. This motion to dismiss comes too late to allow us to inquire into the various questions raised by the counsel in argument. As a general rule, motions to dismiss should be made at the first term. 3 Met. R. 58, Carpenter vs. Aldrich; 1 Met. R. 510, 512, Simonds vs. Parker. And the omission to move at the proper time has been thought to be a waiver of even a constitutional defect. 2 Pick. R. 592, Ripley vs. Warren. In the present case, a long period of time, supposed to extend from October, 1838, to February, 1842, including repeated terms of court, (and during which the party has employed various counsel,) has been allowed to pass without any intimation to this effect. On the contrary, though at intervals various steps have been taken in the progress of the case, such as the amendment of the declaration and the appointment of an auditor, the defendant took no means to avail himself of the alleged defects, omissions and non-compliances. Indeed, two years before the present motion was made, the defendant had pleaded the general issue and given notice of a defence of a totally different character. The plea of the general issue alone was of itself a waiver. 10 Mass. R. 176, Cage vs. Gannett; 2 Pick. R. 592, Ripley vs. Warren; 21 Pick. R. 535, Carlisle vs. Weston ; 1 Met. R. 508, 510, Simonds vs. Parker; 9 N. H. Rep. 464, 467, Smith vs. Whittier. In addition to all this, there was in the present case an express waiver. On general principles, as well as upon the authority of 2 N. H. Rep. 520, Alton vs. Gilmanton, and 5 N. H. Rep. 393, Pike vs. Emerson, we have no hesitation in saying that Mr. Eastman, the counsel of the defendant, had in that capacity full power to waive, as he explicitly states he did, the matters which now form the ground of the motion to dismiss. It is not necessary in order to bring us to a conclusion, but it is worthy of notice, that the defendant seems to have assented to and ratified the course of his former counsel. Motion denied.