53 N.C. 402 | N.C. | 1861
The action was commenced by warrant before a justice of the peace. The warrant was directed to one N.C. Shull, who was not an officer nor the deputy of an officer, and was by him executed and returned. The parties went to trial on the merits, and a judgment was rendered against the defendants for the plaintiff's demand, from which they appealed to the Superior Court. In that court a motion was motion was made to dismiss the warrant for the defect of service, but his Honor was of opinion that the objection was not taken in apt time, and refused to dismiss, from which judgment defendants appealed to this Court. We concur with the view which his Honor took of the case in the court below. If the defendants wished to avail themselves of the irregularity that the warrant was not executed by a person having authority of law to do so, it ought to have been brought to the attention of the justice when they appeared before him. Having appeared and contested the plaintiff's demand on the merits, they are not at liberty in the appellate tribunal to fall back upon the want of a proper service of the process. The exception to the service, if taken before the justice, would have been good, but it is an irregularity which is waived by a failure to except at that time and by going to trial upon the merits. One may become a party to a suit without a service of any process. (403) He may accept service or he may actually appear and contest the rights in dispute, which is equivalent to acceptance of service, and after a trial upon the merits in any such case it is too late for a contestant to say he was not properly brought into court.
No formal pleadings are requisite in a justice's court; the warrant is the declaration, and memoranda of the objections to the recovery are the pleas. And if there is a trial of the case without objections appearing to the service or form of the warrant, it will be assumed that these were waived, as pleading in chief in a court of record is regarded as a waiver of matters, which might have been made available by plea in abatement. Defense must be brought forward by pleas or what are considered in our practice equivalent to pleas made in order and in apt time; else they cannot be heard.
We are of opinion, therefore, in this case that the defendants, by going to trial before the justice on the merits of their case and without making objection to the want of service by a proper officer, waived that defect of service, and were not at liberty to resort to it in a subsequent stage of the cause.
PER CURIAM. Affirmed. *308
