Citation Numbers: 2 Hilt. 584
Judges: Daly, First
Filed Date: 3/26/1860
Status: Precedential
Modified Date: 2/5/2022
The summons was irregular. It was not accompanied by the service of a copy of the complaint, and did not state that the complaint was, or when it would be, ffled. The letter of Morange was a notice of appearance. Baxter v. Arnold, 9 How. 445; Quick v. Merrill, 3 Cai. 133. It was signed by him as the defendant’s attorney, and informed the plaintiff’s attorney that he, Morange, would waive the irregularity in the summons, and accept, as the defendant’s attorney, the service of a copy of the complaint. The proper course for the plaintiff’s attorney, then, was to serve a copy of the complaint upon Morange, and upon such service being made, the defendant would have been precluded from taking any advantage of the defect in the summons. This the plaintiff’s attorney did not do, but offered to serve a copy of the complaint upon Morange if he would sign a formal notice of retainer by and appearance for the
Motion granted, with costs.