Roth v. Way & Raymond — 2 Hill & Den. 385

Majority

p. 385

Roth vs. Way & Raymond.

Headnote

In actions commenced without writ, the filing and service of a declaration is in the nature of process to bring the defendant into court; and hence, if a paper be served purporting to be a copy of a'declaration, and it turn out that no declaration has been filed, the defendant may move at once to set aside the proceedings, without waiting for a judgment or default.

Without the service of process, and without filing a declaration, the plaintiff served the defendants with what purported to be a copy of a declaration and the usual notice requiring a plea.

H. B. Webster, for the defendants,

moved to set aside the service of declaration for irregularity.

C. H. Doolittle, for the plaintiff,

said there was nothing in court to be set aside. The defendants should have waited until the plaintiff took a default or judgment.

By the Court,

In actions commenced without writ, the filing and service of a declaration is in the natQre of process to bring the defendant into court, and the court always has power to see that its process is not abused. The defendants have been irregularly served with process purporting to issue out of this court, and it was not necessary for them to wait for a judgment or default before moving to set the proceedings aside.

Motion granted.