Young v. Rankin

5 Miss. 27

• Court: Mississippi Supreme Court
• Decided: December 15, 1839
• Status: Published

Opinion

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The question here involved is whether a defective service of process is waived by pleading a bad plea which was disregarded by the court. It was a plea in abatement without affidavit; which, on motion was treated as a nullity.

We can entertain no doubt, but what the appearance was sufficient to amount to a waiver in the defective service of process, if the service was defective, which under the circumstances need not be decided. Preceding the plea is an entry in the record that thé defendant by attorney appeared. This in itself might be regarded as sufficient; but in addition a plea was filed, which contained the ordinary appearance, to wit: “ And the said defendant by attorney comes and defends the wrong, &c.” This was not necessarily.a part of the plea, and may be omitted in pleading. 1 Chitty, 461. Although the plea was regarded as a nullity, it does not follow that the appearance was so regarded. A defendant may enter his appearance in one part of the record, and his plea in another. In England a very slight circumstance is held to be an appearance; such as taking a declaration out of the office, or receiving a copy of it either by the party or his attorney. Sellon’s Practice, 93. In addition to the above appearance, we find that the defendant’s appearance is further made apparent in taking the bill of exceptions to the overruling his motion. The record of it is, “ that on the trial of the above motion the defendant by his counsel excepted, &c.” We must, therefore, regard the appearance as sufficient, and cannot enter into an inquiry as to the power of the attorney to appear, or his intention to do so. If the plaintiff in error suffers by it, he may look to his attorney.

Judgment affirmed.