Symons v. Northern, 49 N.C. 241, 4 Jones 241 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 241, 4 Jones 241

J. V. & T. SYMONS vs. T. H. NORTHERN.

After a defendant has appeared and pleaded in chief to an attachment, it is too lato to object to errors in the form of the attachment

MotioN to dismiss an ATTACHMENT, heard before Person, J., at the Pall Term, 1856, of Davidson Superior Court.

The attachment, which issued in. this case, is as follows:

“ State of North Carolina, 1 To the' sheriff or any other Davidson County. j ■ lawful officer:

"Whereas, James Y. and T. Symons & Co. have complained on oath before me, John P. Mabry, one of the justices of the peace for the said county, that T. II. Northern is justly indebted to them to the auiouut of ffive hundred dollars, and oath having been also made, that the said T. II. Northern hath removed, or is about to remove himself out of the county, or so absconds or conceals himself, that tlie ordinary process of law cannot be served on him; and the-said J. Y. & T. Sym-ons and Co., having given bond and security according to the directions of the Act of the General Assembly in such case made and provided :

“ We therefore" command you, that, you attach the estate of the said T. II. Northern, if to be found in your county, or so much thereof, repleviable on security, as shall be of value sufficient to satisfy the said debt and costs according to the complaint ; and such estate so attached in your hands to secure, or so to provide that .the same may be liable to further, proceedings- thereupon to bo had at the court-house in Lexington, on the second Monday in Pobluary, so as to compel the said T. II. Northern to appear and answer to the above complaint, when and where you shall make known how you have executed this attachment. Given raider my hand and seal. J. P. Mabry, J. P.”

The attachment was issued on. the 10th of December, 1855, and returned to February • Term, following, of Davidson County Court, levied on various personal chattels belonging-to the defendant. "Whereupon an order of publication w; made, and the cause continued. At May Term of tbe Cor the defendant replevied the property, and appeared by attorneys in the cause, who pleaded “ general issue,” “ payment and set oíf,” “ statute of limitations,” and the cause was continued. At August Term of the Court, a motion was made to dismiss the attachment, because there was no date to it, and because it was not made returnable at “ a Court to be held for the county of Davidson,” &c., but only at the courthouse. The County Court refused to dismiss, and the defendant appealed to the Superior Court on the interlocutory motion, and his Honor, on consideration of the motion, being of opinion that, by coming in and pleading in chief, he accepted the plaintiffs’ declaration, and that it was too late when the motion was made, to take advantage of the defect in the process designated, also refused to dismiss, and ordered a procedendo to the County Court, from which judgment the defendant appealed to the Supreme Court.

Miller and Gilmer, for plaintiffs.

Kitlrell and Gorrell, for defendant.

Battle, J.

We agree with his Honor that, after the defendant had appeared and pleaded, it was too late for him to object to the validity of the attachment, on account of the errors specified, which were, that it had no date and was defective in omitting to say “ at a Court to be held for the county of Davidson, at the court-house in Lexington, on the 2nd Monday in February next.”

A defendant may come into Court without process, and confess a judgment, (Farley v. Lea, 4 Dev. and Bat. Rep. 169,) and we cannot perceive any reason why he may not come in, in the same way, and accept the plaintiffs’ declaration and plead to it. If this be so, why may he not appear and plead upon defective process % The main object of the leading process is to bring the defendant into Court, and if he do not choose to object in Umine to the manner in which be has been brought in, it would be wrong to allow him to do so after he has, by his acts, admitted himself to be there, ready to defend himself against the plaintiffs’ action. The case of Houston v. Porter, 10 Ire. Rep. 174, referred to by the defendant’s counsel, cannot avail him, because there, the defendant in the attachment did not appear, and the objection was talien by the person who was summoned as garnishee. The same may be said of the cases of Washington v. Saunders, 2 Dev. Rep. 243, and Clark v. Quinn, 5 Ire. Rep. 175, in which the objections were taken by competing creditors. In Washington v. Saunders, it is expressly said by the Court that “ the appearance of the defendant will cure many defects.” In the present case, the defects related, altogether, to the time and place of appearance, by which it is manifest that the defendant was not at all prej udieed, because he did appear at the proper time and place, and acted just as he would have done had the writ of attachment been in all things perfect. Surely, after having done this, he ought not to be allowed to retrace his steps for the purpose of making an objection to a process, which, as to him, is functus offioio.

The interlocutory order from ■ which the appeal was taken is affirmed, and this must be certified as the law directs.

Pee Cubiam- The judgment is affirmed.