Simon v. Spiro ( 1900 )

Grant, J.

(after stating the facts). The judgment is erroneous. Plaintiff’s claim is as fully set forth in his affidavit as it could have been in a declaration. Defendant treated the affidavit as a declaration, pleaded thereto, and went to trial upon the merits without objection. He waived the filing of the declaration, and submitted to the jurisdiction of .the court. It was his duty to raise objection in the justice’s court. Having failed to do this, he will not be allowed to raise it in the appellate court. As this is fatal to the judgment of the circuit court, we need not discuss the other questions raised. It was the duty of the circuit court to permit a declaration to be filed.

Judgment reversed, and case remanded for trial.

The other Justices concurred.