Morgan v. Stone

65 Mass. 253

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1853
• Status: Published

Opinion

Bigelow, J.

We have not considered the question whether Wheeler should have been joined as coplaintiff in this action, because we are all of the opinion that the objection urged by the defendant on this ground is not open to him in this stage of the cause. The nonjoinder was not objected to by an answer in abatement, or in bar upon the merits, nor was the point raised on the trial, or ruled upon by the court. The defendant having gone to trial on the merits and taken his chance for a favorable verdict, without raising the objection, must be held to have waived it. If it had been seasonably taken, the plaintiff might have had leave to amend under St. 1839, c. 151, § 2, by making Wheeler a coplaintiff. It would be most unreasonable to permit the defendant now to avail himself of this defect in the plaintiff’s writ, if it were ever so well founded. Besides ; the defendant is precluded from taking this objection on a motion in arrest of judgment. The St. 1852, c. 312, by which the proceedings in this action are regulated, expressly provides in § 22, that “no motion in arrest of judgment for any cause existing before verdict shall be allowed in any case where a verdict has been rendered, unless the same affects the jurisdiction of the court.” This case does not fall within the exception. Wheeler not having been a party to the record, was a competent witness SI. 1852, c. 312, § 60, Palmer v. White, 10 Cush. 321.

Exceptions overruled.