Schæffer v. Waldo, Barry & Co. , 7 Ohio St. (N.S.) 309 ( 1857 )

J. R. Swan, J.

The plaintiffs were non-residents, and gave no-security for costs at the commencement of the suit; but after the return of summons, and before motion by the defendants, L., without order or leave of court, entered on the appearance docket, “ I am security for costs.” On motion to dismiss for want of security, L. appeared and consented to the order of the court, recognizing him as surety, and the court approved of Xi. as surety, and overruled,the motion to dismiss.

The defendants moved to quash the writ because it was served on the return day, and not returned by the sheriff until two days-*after the return day. Motion overruled, and defendants excepted, and afterward filed their answer.

Held: That Xi. became surety by appearing in court, and the approval of the court, etc., and that the defendants waived the objection to service on the return day, and return of the summons, by-filing their answer.

Motion overruled.

Bartley, C. J., and Brinkerhokf, Scott, and Sutlief, JJ., concurred.