People v. Dobbins

GILDERSLEEVE, P. J.

The plaintiff brought this action against Anne V. D. Dobbins, first name being fictitious, and George H. Dobbins, to recover a penalty for a violation of section 28 of the agricultural law (Laws 1893, p. 664, c. 338). The summons was amended upon the trial by substituting the real name of the defendant as “Ada,” in place of “Annie”; and, it being shown that she was the owner and proprietor of a restaurant and that the codefendant was the manager only, the action was dismissed as to him and judgment was taken against her alone.

The cause of action was based upon the serving at the defendant’s restaurant to her customers the substance known as “oleomargarine” for and in lieu of butter, and there was ample testimony to support the judgment. The defendant herein also made a motion in this court to have this judgment reversed upon the ground that no service of the summons was ever made upon the defendant Ada V. D. Dobbins, and hands up affidavits in support of such motion. If, however, we should consider the affidavits upon the appeal from the judgment, waiving the defendant’s irregularity in practice, we should nevertheless affirm the judgment, for the reason that, although there is no evidence that the defendant was ever served with a summons, yet she appeared and went to trial without objection, and by such voluntary appearance conferred jurisdiction upon the court. Section 26, Municipal Court Act (Laws 1902, p. 1498, c. 580).

Judgment affirmed, with costs, and motion denied.

MacLEAN, J., concurs.