4 Blackf. 137 | Ind. | 1835
stated the points in the cause, and explained the nature of the original writ in England and the process founded upon it
It may be observed that the common law doctrine as practised in England respecting process, is in the general applicable to our writs unless altered by statute; and that, therefore, mere errors in our writs are cured by the appearance of the defendant. But there is a distinction between errors that only render the process voidable, and defects that render it void. Simple appearance does not cure the latter. Process in England, and our writs answering to those called process in England, form no part of the record; errors in them cannot be assigned for error: hence the only remedy is to move to set aside the proceedings; and that should be done before appearance, unless the writ is wholly void. In the latter case, a mere appearance will not cure the defect. The appearance, however, here spoken of, does not simply mean the coming of the defendant into the court-house; it means an appearance to the action, such as perfecting bail, or taking some step in the action towards a defence. The party must come before the Court, or he can make no objection to the writ, and this he cannot do until the writ is returned. The rule appears to be this: The motion must be made as early after the return of the writ, as is convenient and practicable according to the rules of the Court, and before any step is taken in the defence. The taking a copy of the declaration out of the office, has been decided to be such a step as will cure errors in process. 3 Bl. Comm. Chitt. ed. 287, n. 10.—1 Sell. Pr. 108. In this case, the party appears to have made his motion indue time; that is, there is nothing of record to show or even raise a presumption to the contrary
The question then is, should the motion have prevailed? The appellant appears to rest his case upon the common law. The common law will not sustain him. At common law, his writ would have to be tested in the name of the President Judge, and then be sealed with the seal of the Court, and officially signed by the clerk. The clerk is the keeper of the seal of the Court at common law; and when he seals process, he must officially sign' it to show that it was sealed at the proper
The judgment is reversed with costs. Cause remanded, &c.
Original writs in düngland, in personal actions commenced in the superior Courts at Westminster, have been recently abolished. Such suits are now commenced in any of those Courts by a writ of summons, where the process is not bailable; a writ of capias, where the defendant is held to bail; and a writ of detainer against prisoners in custody. 3 Toml. Law Dict. 836.
The appearance of the parties is no longer (as formerly) by the actual presence in Court, either of themselves or their attorneys. It is effected on tho part of the defendant, (where he is not arrested,) by making a certain formal entry in the proper office of the Court, expressing his appearance, or, in case of arrest, it may be considered as effected by giving bail to the action. On the part of the plaintiff, no formality expressive of the appearance is observed; but upon appearance of the defendant, effected in the manner above described, both parties are considered as in Court. Steven’s Pl. 26.
Appearance is the first act of the defendant in Court; but in practice many applications are made by and on behalf of defendants, before their appearance is perfected. Those applications are usually grounded upon the adoption of an inapplicable process by the plaintiff, or on some defect or irregularity in the mode of issuing the species of process which has been employed, or in its form or execution.
There are, however, a few defects in practical proceedings that have been considered not merely as irregularities, but as nullities and not aided by delay. If, for example, a proceeding be declared void by statute,—as the service of process on a Sunday,—it is decided that the defendant, in such a case, might have the proceedings set aside, though the objection was not made until after a rule to plead had been given. Taylor v.Phillips, 3 East, 155. But such cases, it is said by Mr. Chitty, require much consideration; and it cannot be supposed that the doctrine is, that a nullity in an early stage of a cause may not be waived; thus, if a defendant plead in bar, and there have been a regular trial and verdict, it is not to be supposed that the latter, or the judgment and execution thereon, would be afterwards set aside on the ground that there was no writ of summons, or no formal appearance for the defendant entered. 3 Chitt. G. P. 525. Vide Lagow v. Patterson, Vol. 1 of these Rep. 327.—White v. Rankin, 2 id. 78. Eldridge v. Folwell, 3 id. 207.—Perkins v. Smith, May term, 1837, post.