34 Conn. 181 | Conn. | 1867
The writ in this case was signed by a justice of the peace. It was duly served and returned to court. In due time the defendant entered the plea of the general issue, with notice of special matters of defence that would be made upon the trial. The cause was continued in court from term to term for a period of nearly three years, when it was erased from the docket on the ground that the court had no jurisdiction of the cause, inasmuch as the process‘was signed by a justice of the peace, when according to the statute the same ought to have been signed by the clerk of the court that tried the action upon which the proceeding is based.
Whether the court erred in erasing the cause depends upon the question whether the process was void or not. If the process was void no action of the parties could cure the defect dr confer jurisdiction upon the court, and it was properly erased, the cause appearing upon the face of the proceedings. Perkins v. Perkins, 7 Conn., 558 ; Wickwire v. The State, 19 id., 477 ; Andrews v. Wheaton, 23 id., 112 ; Wildman v. Rider, id., 172 ; Bishop v. Vose, 27 id., 1; Osgood v. Thurston, 23 Pick., 110 ; Carroll v. Dorsey, 20 Howard, 204, 207 : Stevens v. Hewett, 30 Verm., 262; Badger v. Towle, 48 Maine, 20; Crawford v. Stewart, 38 Penn. S. R., 34.
But we think that the process was not void. The case of Fowler v. Bishop, 32 Conn., 199, virtually determines that a defect like the one in question may be waived by the defendant.
The principle of that case must govern the one in question. The superior court had ample jurisdiction over the subject matter of the suit. It was properly presented to the court by the pleadings of the parties, and the defect is similar in character to the one supposed by the Chief Justice. The law prescribes a mode by which a plaintiff may compel a defendant to appear in court and make answer to matters alleged against him. The signing of the process by some proper officer is a part of the mode. The service of the same upon the defendant is another part of it. Both are essential to compel a defendant to appear in court, and the one is no more so
It is common for defendants to enter upon process a waiver of service, or of the length of time that the law requires that service shall be made, before the sitting of the court to which it is returnable, and why may they not waive the signing of process by some proper officer ? All that the officer signing the process does, or can do, is to attest the proceeding, and command the sheriff, his deputy, or some constable, to make service. If the defendant can waive the service manifestly he can waive the command to make service, and all that remains is the attesting of the proceeding. But the defendant knows as well as the officer signing the process can know, whether there is proper foundation for the proceeding, and inasmuch as this is required for the benefit of the defendant, that he may not be harrassed by unauthorized suits, no good reason can be given why it may not be waived. Payne v. Farmers’ and Citizens’ Bank, 29 Conn., 415 ; Schenley v. The Commonwealth, 36 Penn. S. R. 29; Sherer v. Easton Bank, 33 id., 134 ; Lovell v. Sabin, 15 N. Hamp., 29 ; State v. Richmond, 6 Foster, 232.
We think therefore that, inasmuch as the defendant appeared in court and answered this proceeding by entering a plea to the merits of the case and submitted himself to the jurisdiction of the court for so long a period of time without making any objection to the mode in which the cause came into court, the court thereby acquired jurisdiction over the parties in the
We think there is nothing in the further claim of the defendant, that the order of the court directing the case to be stricken from the docket is not a judgment that can be revised on motion in error, nor in the claim that, if the order be the subject of revision, the plaintiffs cannot claim that the court erred inasmuch as it does not appear but that the order of the court was made upon their own motion.
There is error in the judgment complained of, and it is therefore reversed.
In this opinion the other judges concurred.