Hill v. Smith

Headnote

Appearance is a waiver of irregularity in process to bring the defendant into court.

•A notice of motion should sufficiently point out the matters which are the subject of the motion. Where an irregularity is cured, after motion papers are served to set it aside, the moving party is entitled to his costs of motion.

Motion by defendant to set aside declaration, together with such other proceedings in this cause as to the court should seem proper.

It appeared from the moving papers that this was an action of replevin. (Copies of the writs of replevin were annexed.) That the writ was served before "*the return day thereof, and the property named therein delivered to the plaintiff, or some one in her behalf. (A copy of the summons was annexed), that the summons was not signed by the officer serving the same ; that the affidavit annexed to the writ was not made by the plaintiff, nor any reason assigned in it why it was not made by him; that the affidavit did not state that the person making it knew the ownership of the property, nor any thing to that effect. On the 17th of August last, defendant’s'attorney was served with a declaration in this cause (a copy of which was annexed). The plaintiff declared against the defendant for more property than was mentioned or set forth in the writ of replevin. It appeared, from the plaintiff’s opposing papers, that the writ of replevin was issued on the 19th of May, 1846, which was accompanied by an affidavit made by James Hill in behalf of the plaintiff; that said plaintiff was the owner of, and entitled to the possession of the property described, &c. The writ was returned on or about the 16th of July last. The defendant was not arrested, nor any bail taken. Defendant was served with a summons at the time of the execution of the writ, which the coroner stated he believed was signed by him as coroner; that the copy summons returned by him was thus signed. On the 26th of May last, defendant’s attorney served

a notice of retainer in this cause, on plaintiff’s attorney. On the 12th of August last, plaintiff’s attorney filed a declaration in the cause; and served a copy, with notice to plead, &c., on the same day, on defendant’s attorney. After the filing and service of the declaration, plaintiff’s attorney discovered that the declaration on file, and the copy served, did not correspond with the writ: the variance consisted in this, that the writ described, among other property, “two cosset sheep,” and the declaration reciting it “ four cosset sheep.” On the 25th of August, plaintiff’s attorney filed an amended declaration corresponding with the writ; and served a copy as amended on defendant’s attorney, on the 27th of August.

It appeared, from the copy summons annexed to the moving papers, that it was not signed by the coroner. It also appeared that the papers for this motion were served on the plaintiff's attorney, on the 22d of August last.