Brady v. Hardeman & Hamilton

By the Court.

Starnes, J.

delivering the opinion.

[1.] In this case, the plaintiff in error acknowledged service of the petition, and waived a copy of same and of process. But the process itself he did not waive.

In the case of William G. Little vs. Bryant Ingram, decided at Decatur Term, 1854, we have given, at some length, the reasons which we suppose influenced the Legislature in requiring that a process having, in substance, such requisites as prescribed by them should accompany every declaration, and in enacting, that if the defendant wore brought into Court by a proceeding issuing forth in any different manner, it vitiated' the whole proceeding, and (unless the process were waived,) rendered the same null and void. To that judgment we refer for these reasons.

In addition to the reasons there assigned, I add, that one of this Bench holds the opinion that it was the intention of the Legislature, also, to require that the process should be annexed by the Clerk to the petition, the practice having been previously loose in this regard.

There was no process ■ annexed or accompanying this proceeding. The defendant did not waive such process. The whole proceeding being therefore radically defective, advantage might be taken of it, at any stage of the case, and the judgment should have been vacated.