Majority
p. 362Francis & Eames vs. Sitts. moved to set aside the declaration as premature, contending that it was irregular
Headnote
Service of a declaration in replevin was held regular, though made before either the return day or actual return of the writ, the defendant’s attorney having, previous to the service, given general notice of retainer.Under the 96th rule of this court, a general notice of retainer operates as effectual an appearance as if the defendant had entered his appearance with the clerk.
A written admission of service of a.declaration relates only to the mode of serving, and does not in itself amount to a waiver of irregularity as to the time of declaring.
Replevin. The defendant’s attorney gave geneial notice of retainer after service of the summons-and before the actual return or return day of the writ; whereupon, and before the actual return or return day, the plaintiffs declared, and the defendant’s attorney gave a written admission of the service of-the declaration.
J. Benedict, for the defendant,
p. 363to serve it before the return day or actual return of the writ. In support of the motion, he cited 2 R. S. 432, § 11; id. 435, § 35; id. 434, § 28; id. 433, § 20; Wilson v. Williams, ( 18 Wend. 581 ;) Craig v. Murdock et al. (12 id. 239;) Smith v. Bush, (2 id. 279 ;) Sawyer v. Wood, (18 id. 631.) insisted that the plaintiffs might declare at any time after general notice of retainer, which, by the 26th rule of this court, amounted to an appearance. He further contended, that the irregularity, if such it was, was waived by the admission of service.
W. McCall, contra,
By the Court,
The admission of service goes only to the mode; and ought not to avail as a waiver of irregularity in the time of declaring.
But the answer derived from the notice of retainer is conclusive. Such a notice has, by rule 26, the effect of an appearance the same as if the defendant had actually entered an appearance with the clerk. This may be done as well before, as after the return day of the writ
Motion denied.