Bowell v. Gould

Pee Cueiam:

This case was brought into the court below by an appeal from the judgment of a justice of the peace. The defendants now assign for error that the court refused to set aside all proceedings as to defendant Joseph W. Gould, and to strike his name from the record. The principal ground of this objection appears to be that Gould was not served with the summons in the proeeeding before tbe justice. An inspection of tbe transcript of tbe latter shows the following return by the constable: “ Served a true'copy of original summons on Joseph Short, one of the defendants, personally, he also accepting service for his partner, at the same time producing the original and informing him of the contents thereof.” It will thns be seen that a proper service was made upon Short, and that the latter accepted service for his partner, GouhL We need not discuss the question how far this acceptance of service by his partner bound Gould.

The transcript shows an appeal by the defendants, which, upon its face, is an appeal by both. The appeal was filed in the Common Pleas in 1883. No further action appears to have been taken until December 28, 1887, when an affidavit of claim and a declaration were filed. Gould then came in and made an application to have all proceedings against him set aside. This motion was refused. He then filed an affidavit of defence, and a plea. Subsequently, the case was set down for trial, the jury was sworn as to both defendants, and a verdict rendered for the plaintiffs. All this we gather from the record. It further appears from the opinion of the court below, and we do not understand it to be denied, that Gould was personally present at the trial, and was examined as a witness. Under such circumstances we cannot say the court erred in refusing to set aside the proceedings against him. The record shows that he was in court by the appeal. If the transcript of the alderman was erroneous in stating that the appeal was by the defendants, he should have taken a certiorari to that judgment as soon as the fact became known to him. It is too late to make that objection after the trial of the appeal in the court below, and after his having participated in that trial. It follows that the statute of limitations was not a bar to the claim against him.

It is sufficient to say, in answer to the fourth specification, that neither the claim nor the judgment exceeded the jurisdiction of the justice.

Judgment affirmed.