President of the Maine Bank v. Hervey , 21 Me. 38 ( 1842 )

The opinion of the Court was afterwards drawn up by

Shepukv J.

— Although the amendment of the writ after service, and without leave of the Court, was illegal, yet having been afterwards assented to by the defendant, it can no longer afford any legal objection to the further prosecution of the suit. The affidavit required to authorize an arrest was insufficient; the arrest was illegal; and the plaintiffs can derive no advantage from it. Whiting v. Trafton, 4 Shepl. 398. The service having been illegal the writ may be regarded as presented in Court and the entry of the action as made without service. The defendant in such cases may voluntarily appear and take upon himself the defence. By a general appearance he becomes a party to the suit, is regularly in Court, and authorizes it to state that fact on record, and upon proper proof from the plaintiff, to render judgment against him, unless in accordance with its rules of practice he can make a legal defence. Such a general appearance to the action cures all defects in the summons and service. Dalton v. Thorp, Cro. Eliz. 767; Rex v. Johnson, 1 Stra. 261; Caswall v. Martin, 2 Stra. 1072; Knox v. Summers, 3 Cranch, 498. A special appearance for the purpose of taking advantage of defects, can have no such effect, and it is so stated in the case of Blake v. Jones, 7 Mass. R. 28. Nor will such general appearance deprive him of the benefit of the rules of Court; and he may within the rules still plead any matter in abatement. If it become apparent on inspection, that the Court has no jurisdiction, it will at any time stay all further proceedings.

In this case it does not appear, that the District Court had not jurisdiction over the parties and the subject matter of the suit. The contrary may justly-be inferred. The rules of that Court must govern its practice-; and they required, that pleas in abatement should be filed before the new entries were called. And this plea in abatement was filed too late. The motion could not avail the defendant, because, as before stated, his general appearance to the suit cured the defect of service and precluded him from taking the objection. In the case of Rathbone v. Rathbone, 4 Pick. 89, the motion for leave to plead in abatement was made on the first appearance of the defendant, and it was decided to come within the spirit of the rule. While the CQurt would act upon it as a general rule of practice that a motion to quash for defects apparent on inspection of the record, if not made within the time required for filing a plea in abatement, should be overruled as stated in the case of Trafton v. Rogers, 13 Maine R. 315 ; there may be exceptions to the rule; such for instance as where the plaintiff withholds the writ until after the time for filing a plea in abatement has elapsed. His own wrong should not in such case be allowed to give him an advantage and to deprive the defendant of a right. Although the bill of exceptions states that the court “ ordered the defendant to be called,” it is understood to have been .an erroneous statement, and the counsel do not claim any advantage from it.

Exceptions overruled.