Anonymous — 2 Cow. 578

Majority

p. 578

Anonymous.

Headnote

Tho’ a debTrfgned™by counsel, yet if it is not so •signed, and the ney°S<m ifs^being served,sign that ad/™SS/ms been served with a demmurrerj &c., this is a waiver of the defect, and he cannot treat it as a nullity

Demurrer. A copy of a demurrer to a declaration had been served on the plaintiff’s attorney, which was not signed by counsel: but the plaintiff’s attorney signed an admission. J 1 _ , that he had been served ivitha copy of a demurrer, and a n0^ce of the rule to join in demurrer. He afterwards went on and took a default for want of a plea, on the ground that the demurrer was not signed by counsel.

p. 579

P. W. Radcliff,

moved to set this default aside.

J Hoyt, contra,

said, the demurrer not being signed by counsel, was a nullity.

Radcliff.

It does not lie with the plaintiff’s attorney to say this, after he has admitted the service of a demurrer. It is a waiver of the defect. The admission imports a perfect demurrer, and the defendant’s attorney should not after-wards be entrapped by its being considered a nullity;

And of this opinion was the Court; and they

Granted the motion, with costs.