40 P. 60 | Idaho | 1895
Plaintiff brought suit in claim and delivery for the possession'of a colt; alleged ownership, possession, and right of possession, wrongful taking by defer, dant, and demand, and refusal to return; brought suit for a recovery of possession, or for the sum of thirty dollars, the value of the property, in case delivery cannot be had, and for twenty-five dollars damages. Summons was issued and served upon defends ant. The defendant appeared specially, by Ailshie & Hall, h'is attorneys, and moved to quash the summons for the following reasons: 1. That it does not give the notice required bylaw; 2. That it does not give notice of the time at which defendant is to appear. The motion was heard by the judge of the probate court, and decided against the defendant. Defendant then placed on file a general demurrer to the complaint, and ••also an answer denying generally and specifically each. and nvery allegation of the complaint. The demurrer was overruled by the probate court, and the case went to trial, both parties ■appearing. After hearing the evidence and argument of eounisel, the court decided the case in favor of the plaintiff (respondent in this court), and gave judgment for the return of the property to plaintiff, and against the defendant for costs. Defendant then appealed to the district court, wherein defendant again appeared, and moved to quash the summons and service, which was again denied by the district court. The defendant refused further to appear. Testimony of plaintiff
When, on the hearing in the probate court, in the motion to-quash the summons, the court denied tbe motion, the defendant filed a general demurrer and answer. By filing said papers he entered a general appearance in the action. A general appearance in the action waives any irregularity in the summons. The defendant having waived the irregularity in the summons, if such existed, such irregularity cannot be taken advantage of either in the district court or in the supreme court. The judgment of the court below must be affirmed, and it is so ordered.
