Jones v. Delaware & Hudson Canal Co. , 2 Foster 172 ( 1874 )

Opinion delivered March 19, 1874, by

Harding, P. J.

The summons in this case issued March 25, 1872,. returnable April 1 following. A sworn service is endorsed thereon as follows: ‘‘Served March 27, 1872, on the within named defendants, joy-leaving a copy of the original summons at-their office in Scranton.”

The defendants were in default on the day of return. The justice,, however, proceeded to hear the plaintiffs “proofs and allegations,” and thereupon entered judgment in his favor for the amount of his claim-Within twenty days next ensuing, the defendants, or some one for them,, entered bail for an appeal. As our terms are arranged, this appeal need not have been filed until the third Monday of October, 1872, that being the first day of the term next succeeding the taking of the appeal. The defendants, however, for reasons which are not material in this connection, neglected to bring their appeal into court. Subsequently the plaintiff' issued execution to collect his judgment. A few clays afterwards the execution was arrested by a certiorari from this court.

The exception to the record of the justice is, “that the service of the summons was insufficient in law, inasmuch as it does not show that any person whatever was served, or notified of the existence of the summons.”' That there was no legal service of the summons cannot be disputed; but the defendants, by‘appearing and entering bail for an appeal within the statutory limitation, treated the case as being regularly before the justice,, and thus waived the defect which otherwise would have been fatal.

It is further objected that the record does not show that the party who took the appeal was an agent of the defendants, or that he was authorized to act for them in this or any other particular. A party may appear before a justice as an agent, and the justice is the judge of the authority of the agent to represent the principal. Barker v. Chandler, 5 H. 48.

The defendants here had the benefit of the delay produced by taking the appeal. As we have seen, they failed altogether to bring their appeal into court; and, six months afterwards, when tire plaintiff took steps to enforce 'the collection of his judgment, they seek by certiorari to avail, themselves of a defect which they had previously waived. Their )vrit comes too late; the proceedings are affirmed.