Wescott v. Menard & Co. ( 1843 )

BAYLOR, Justice.

Menard & Co. sued Wescott in the court below for the recovery of $401.57, due by promissory notes; and obtained a judgment against him for that sum in the following words, to wit:

“This day came the parties by their attorneys, and the defendant withdraws his plea and says nothing in bar cr preclusion of the plaintiff’s action. It is therefore considered by the court that the plaintiff recover of the defendant,” etc.

To reverse which this writ of error is prosecuted. The counsel for the plaintiff urges four grounds for reversing the judgment:

1. No citation appears to have been issued.

2. The record shows no service of writ or petition, nor acknowledgment of service of either.

3. Nor does it exhibit (except by implication in the very judgment purporting to be founded on it) any appearance by defendant below.

4. The record makes no exhibition of the note sued on and described in the petition, and furnishes no proof wherewith the allegations of the plaintiff are at all supported, or upon which the judgment was or could be legally based.

The points thus presented will be briefly considered. The first, second and third errors assigned may well be considered together. They in substance object that copies of the citation and petition were not served on Wescott, and yet proceedings were had and judgment rendered against him.

This objection would be deemed fatal, unless it is cured by his appearance (without service of the process). But the record states that he appeared by attorney, withdrew his plea, and said nothing in bar or preclusion of the right of Menard & Co. to recover against him. We can not falsify the record, and are therefore bound to take it that Wes-cott appeared and consented to the judgment.

A voluntary appearance supersedes the necessity of service of process, which is intended to procure an appearance; the wqjit of service can not therefore be urged in this case as error.

The fourth error assigned raises the question whether this court ought to affirm the judgment of a court below, when the record here does not show a copy of the note sued on. If the judgment was in fact obtained against Wescott without producing the note on the trial below, he ought then to have objected; but the record shows no such objection. We deem it now too late for him to do so, as we must suppose the district court would not have given judgment unless the judge below had the necessary proof to have authorized it.

But for the sake of a correct practice we think it proper to add that wherever written instruments of any kind are made the foundation of an action, such instruments ought always to be produced on the trial and regularly filed at the time the judgment is obtained. Should they afterwards be wanted for other purposes, a motion ought to be ipade to the court for permission to withdraw them by leaving copies on file, and this motion should appear on the records of the court. Judgment affirmed.

Affirmed.