Hudson v. Roberts ( 1926 )

Assuming that, under the facts, there was an irregularity in the procedure followed, which would justify the dismissal of the proceedings on motion, if made in due season, then we have a case where the defendant was brought into the City Court in an informal way, and in that court made no objection to the informality, but, on the contrary, agreed to the jurisdiction of that court, by stipulation, and was duly bound over to the Court of Common Pleas and therein appeared.

By his stipulation and conduct the defendant has waived any right he may have had to question the jurisdiction of the Court of Common Pleas to proceed with the case. The City Court and the Court of Common Pleas had jurisdiction over the parties and the subject-matter. The stipulation was not an attempt by parties to give jurisdiction to a court, which had no jurisdiction over either the subject-matter or the parties. The claimed defect was a formal defect, and not a defect of a matter of substance. Such a defect may be waived by failure to object to it at the proper time.

"The general rule is that an objection to a pleading may be waived by failure to urge the objection at a proper time. . . . A failure to make a motion is generally deemed a waiver of defects or objections for which the motion lies." 31 Cyc. 717, 718.

The statute as to "circumstantial errors, mistakes or defects" is applicable. General Statutes, § 5659. See also Norton v. Shore Line Electric Ry. Co.,84 Conn. 24, 78 A. 587; Woodruff v. Bacon, 34 Conn. 181;Spencer's Appeal, 78 Conn. 301, 303, 61 A. 1010;Smith v. State, 19 Conn. 493; Davis v. McEnaney,150 Mass. 451, 23 N.E. 221; Wheeler v. New York,N. H. H.R. Co., 70 Conn. 326, 39 A. 443; Coyne v. Plume, 90 Conn. 293, 97 A. 337.

There is error, the judgment is set aside and the Court of Common Pleas is ordered to restore the case to the docket to be proceeded with according to law.

In this opinion the other judges concurred.