Drake v. Achison ( 1854 )

Opinion hy

Hauú, J.

Drake sued out an attachment before Adam Hopkins, a justice of the peace, against Achison, and John Hicks was notified as garnishee. On the

return of the attachment, a motion was made by defendant’s agent for a non-suit, which was overruled by the justice ; after which, a trial was had and judgment rendered against defendant for §35. The notice was returned, “ not served on defendant.” From this judgment, Achison appealed to the district court, and filed his appeal bond, and notified the plaintiff of the appeal.

In the district court, the parties appeared and had .a trial by jury, and verdict was returned by the jury in favor of plaintiff for thirty-five dollars. Afterthe verdict and before judgment, a motion was made by defendant to dismiss the suit, on tbe ground that the court had no jurisdiction of the case. That there had been no notice served on the defendant before [the justice ; that the person who appeared there as agent, had no authority to appear, that defendant had never been in court.' These cases were sustained by affidavits.

3. W. Summers, for appellant. D. P. Palmer, for appellee.

The court below sustained the motion and dismissed the suit. The plaintiff now assigns for error this dismissal by the court below.

The appearance of the defendant ’in the district court, and proceeding to trial on the merits without objection, cured every conceivable objection to the jurisdiction of the court over the person of the defendant. The justice had jurisdiction over the subject matter and the process, and the defendant voluntarily subjected himself to the jurisdiction of the district court, and if he ever had any cause to complain, he comes too late after the verdict of the jury against him. The clear duty of the court was to have rendered a judgment for the plaintiff upon the verdict. The cause will, therefore, be reversed and remanded to the district court of Appanoose county, which is directed to render a judgment for the plaintiff upon the verdict of the jury as rendered.

Judgment reversed.