Davison v. West Oxford Land Co.

24 S.E. 14, 118 N.C. 368

• Court: Supreme Court of North Carolina
• Decided: February 5, 1896
• Status: Published

Opinion

Clark, J.:

The court below excluded the deposition of G. W. Davison on the ground that the commission issued to W. H. Raleigh to take the same was not signed by the clerk, and the seal of the court was not affixed ro the commission. This objection would have been valid if the defendant had not appeared when the deposition was taken, or, if appearing, had entered an objection on those grounds. But it appears that ~W. H. Raleigh was a Commissioner of Affidavits for North Carolina, that the witness was duly sworn and examined before him, that notice had been given of the time and place of taking the deposition, and that the defendant appeared by counsel at the examination. The Commissioner having authority to take depositions (Gode, Sec. 633) the appearance of the defendant without objection was a waiver of all irregularities in the commission. Barnhardt v. Smith, 86 N. C., 473, 479. A similar instance of waiver is where a summons is issued to another county, without seal, or where a clerk improperly issues a summons returnable to the superior court of another county, the appearance of the defendant without objection is a waiver of the irregularity. Howerton v. Tate, 66 N. C., 431; Moore v. Railroad, 67 N. C., 209. Or, if there is no summons served at all, or irregularly served, the general appearance of the defendant is a waiver of service and of all objections to the manner of making it. Hinsdale v. Underwood, 116 N. C., 593; Wheeler v. Cobb, 75 N. C., 21; Roberts v. Allman, 106 N. C., 391, and other cases cited in Clark’s Code (2nd. Ed.), pp. 126, 145; Cherry v. Lilly, 113, N. C., 26, and other cases cited in Supplement to Clark’s Code, p. 26. The error in the exclusion of the deposition necessitating a new trial, it is useless to pass upon the exceptions to the charge since they will probably not arise on the next hearing.

Error.