79 Mo. 494 | Mo. | 1883
Action brought before a justice of the peace for killing a cow at a public road crossing. Defendant made no appearance on the day the cause was set for trial, and judgment by default was entered. Afterward the defendant appeared and moved to set aside the judgment by default and for a new trial, which motion being overruled appeal was taken to the circuit court- where defendant hied a special motion to dismiss, based on the grounds of the insufficiency of the summons and of the service of the summons, and because there was no service of the summons. This motion was overruled and thereupon the plaintiff was permitted to amend the summons by inserting the words, “ against the aforesaid Chicago & Alton Railroad Company for damage for the killing of a cow belonging to plaintiff, by defendant.” Defendant made no further appearance and the judgment was affirmed.
But in this case it may be conceded that the summons- and the service were both defective; still defendant appeared before the justice and filed a motion to set aside the judgment by default and for a new trial. What the grounds of that motion were, we are not apprised. When one who has been defectively served with process or served with defective process, appears generally, as we must assume was done in this cause before the justice, all defects of the nature alluded to are either cured or waived. Griffin v. Van Meter, 53 Mo. 430, and eases cited.
The judgment is, therefore, affirmed.