Majority
p. 154Granville Matthew vs. Thomas W. Fleetwood. (February 12, 1912.) Judges Boyce and Conrad sitting. Superior Court, Sussex County, February Term, 1912. (No. 4, February Term, 1912)
Headnote
Appearance—Waiver of Objections—Summons—Defective Issuance—■ Waiver.In assumpsit on a book account, defendant, by appearing and not objecting to the issuance of summons without the affidavit required by statute, waived the defect, and, having confessed judgment, released the error committed in issuing the summons.
Charles W. Cullen for exceptant.
Certiorari directed to a justice of the peace to send up a transcript of his record in an action before him by Granville Matthew against Thomas W. Fleetwood, wherein judgment was rendered for the plaintiff. The defendant brings exceptions which were overruled.
The exceptions relied upon for the reversal of the judgment were: (1) for that it does not appear from said record that the justice was satisfied by the oath of the plaintiff before issuing the summons returnable forthwith that there was danger of losing the benefit of said process by delay; (2) for that the record does not show the jurisdiction of the justice in such case.
It appears from the record that the action was in assumpsit on a book account of sixteen dollars and fifty-eight cents demanded; that summons issued January 5, 1911, returnable forthwith; that there was personal service; that the defendant personally appeared on the same day and confessed judgment in favor of the plaintiff.
The defendant appearing and not objecting to the issuance of the summons without the affidavit, as required by the statute, he thereby waived the defect and having confessed judgment, released the error. Bishop v. Carpenter, 1 Houst. 526 ; Gum v. Adams, 9 Houst. 200 .
Judgment below affirmed.
Cases cited
- Bishop v. Carpenter 1 Houst. 526 p. 154