Brooks v. Northey , 48 Wis. 455 ( 1880 )

Ltoít, J.

The failure of the plaintiff to give notice to the defendants of the petition to revive the action in the name of the executor, was an irregularity. Such notice should have. been given, and, on the hearing of the petition, the defendants might have insisted that due proof should be made of the probate of Carson’s will and the qualification of the present plaintiff as executor. But this was an irregularity merely, which, like any other irregularity not going to the jurisdiction of the court, may be waived by the opposite party.

The original plaintiff having deceased, it was competent for the court to revive the action in the name of his duly qualified executor. Notice of the petition should have been given; but proceeding without notice affects only jurisdiction of the person, not of the subject matter, and a subsequent general appearance waives the defect. The rule is elementary, that a general appearance to the action by the defendant waives a defective service, or want of service, of the original process. The principle of this rule is applicable here.

The argument of the demurrer on behalf of the defendants, without objection to the validity or regularity of the proceedings to revive the action, was clearly a general appearance to the action, and, within the above rule, a waiver of the want of notice of such proceedings.

It may be that the action was revived on insufficient proofs; but there is nothing ou the face of the proceedings to show that it was improperly revived. If Carson’s will had not been admitted to probate, or if the present plaintiff was not the duly qualified executor of his estate, the defendants should have moved to set aside the revivor proceedings for one or both of those reasons; and, the facts so appearing, the motion should have been granted. No motion to set aside those proceedings was made, and no valid reason for setting them aside is disclosed in the record.

By the Court. — The judgment of the circuit court is affirmed.