Secrest v. Arnett

5 Blackf. 366, 1840 Ind. LEXIS 73

Opinion

Blackford, J.

This suit was commenced before a justice of the peace; and the writ issued in the names of /. & R. M. Secrest, plaintiffs. Motion by the defendant, before the justice, to dismiss the suit, because the Christian names of the plaintiffs were not stated. Motion overruled. The plaintiffs then, by the names of James and Robert M. Secrest, filed their declaration, the defendant pleaded to the action, and the cause was tried. Judgment for the plaintiffs. The defendant appealed.

The Circuit Court, on the defendant’s motion, dismissed the suit for the reason urged for its dismissal before the justice.

The plaintiffs contend, that the defect in the writ was cured by the plea before the justice; but we do not think so. The objection to the writ was made and overruled, before the appearance and plea to the suit. There was therefore no waiver of the objection. The case of Eldridge v. Folwell, 3 Blackf. 207, is relied on by the plaintiffs; but in that case there was an appearance to the action, without any previous objection to the writ.

Per Curiam.

The judgment is affirmed with costs.