Thompson v. Kenney , 110 Mass. 317 ( 1872 )

Morton, J.

The matter assigned as error is, that the justice of the peace, to whom the complaint in the original action was made, had no authority to issue a warrant thereon returnable before himself, and to require the plaintiff in error to give bond to appear before the Superior Court and answer to the complaint, and therefore that the Superior Court had no jurisdiction of the case. We do not deem it necessary to decide whether or not the justice of the peace had such authority. The plaintiff in error appeared in the Superior Court, a trial was had upon the complaint there filed, and a verdict was found against him.

The statute provides that “ a judgment shall not be arrested for any cause existing before the verdict, unless the same affects the jurisdiction of the court. And where the defendant has appeared and answered to the merits of the action, no defect in the writ or other process by which he has been brought before the court, or in the service thereof, shall be deemed to affect the jurisdiction of the court.” Gen. Sts. e. 129, § 79.

In bastardy proceedings, the Superior Court exercises an original and not an appellate jurisdiction. The proceedings before a justice of the peace or police court are merely to compel the appearance of the defendant before the Superior Court. In this case, that court had jurisdiction of the subject matter and of the parties, and it is too late after a verdict and judgment to object to any defect or irregularity in the proceedings before the justice of the peace. The statute above cited applies to and disposes of the case. McCabe v. Dow, 7 Allen, 477.

The facts that the plaintiff in error was not personally present at the trial in the Superior Court, and that no written answer was filed, are immaterial. He appeared and was heard by counsel, and it is not necessary that he should be present in person. Young v. Makepeace, 103 Mass. 50. If he neglected to file a written answer, it was at most an informality in the proceedings, which does not affect the jurisdiction of the court, and furnishes no ground for ai resting the judgment.

,, Writ of error quashed.