Bierce v. Smith

2 Abb. Pr. 411

Opinion

Whiting, J. —

This is a motion to set aside judgment for irregularity. The summons for the commencement of the suit was served on the defendant, a resident and an elector of Stephentown, Eensselaer county, on the day of the last general election. Such service is forbidden by the statute. (Laws of 1842, 109, ch. 130).

It is said, however, that the irregularity was waived by the service of notice of appearance. That was served after judgment, and with the papers on which this motion was made. Such an appearance does not waive the irregularity, and must be treated as a notice only for the purpose of this motion.

Motion granted, with ten dollars costs.