Miln v. Russell

3 E.D. Smith 303

• Court: New York Court of Common Pleas
• Decided: October 15, 1854
• Status: Published

Opinion

By the Court. Woodruff, J.

In this case the defendant on the trial objected, first, to the service of the summons, insisting that it was only served by a person under the age of twenty-one years, and that such a deputation was not lawful. Had he rested upon his objection in that respect, as well as to the manner of the appointment, we incline to the opinion that the judgment would have been reversed; but all his objections to the deputation and service of the summons were matter in abatement only, and being overruled, they were waived by pleading to the merits. We have repeatedly held that all defects in the summons and in the service thereof are waived by going to trial upon the merits, and this, we apprehend, was long since settled.

The judgment must be affirmed, with costs.

Judgment affirmed.