Schober v. Mather

The opinion of the court was delivered, by

Read, J.

The attachment-execution in this case was issued on the 4th of September 1861, returnable on the 20th of the same month, the second return day of September Term, the first return day having been Monday, the 9th of said month.

The legacy, distributive share, money, estate, or effects whatsoever of the defendant in the hands of the executor, were attached,' and he was summoned as garnishee, and the defendant Was not found in the bailiwick.

A general appearance was entered by counsel for the garnishee after the service of the writ.

Interrogatories to the garnishee were filed, with a rule to answer or judgment, and on the 8th of September answers to the interrogatories were filed.

It is a familiar principle that actual appearance is a waiver of defects in the process or the service of it, and it was said in Zion Church v. St. Peter’s Church, 5 W. & S. 217, that “ the question of service is an immaterial one,.as the defendant thought proper to enter a general appearance to the action, which, were it necessary, would be considered a waiver of both summons and service.”

If this had been a summons or an ordinary scire facias, the return day would have been right, and as the clause of scire facias in the attachment-execution requires the appearance of the garnishee at the next term or at such other time as the court shall appoint, and the writ is to be served in the manner provided for the service of a writ of summons, there would be little difficulty in holding the whole to be perfectly regular, even if the garnishee had not concluded himself by his acts affirming their regularity. The court, therefore, erred in quashing the writ.

Judgment reversed, and a procedendo awarded.