Ofinidri 5^

This action was iristitiited by ¿Fames Miller, by bis agent ~W. M. Andrews,- against *10Eoss B. Hughes, under the provisions of the statute for the trial of the right of property seized under execution. Rev. Stat. 331.

The facts of the case are briefly set forth in an agreement of the attorneys and the bill of exceptions. The agreement of the attorneys is as follows:

“It is agreed to admit on this trial as evidence, that there was a judgment on the docket of Zadock Smith, a justice of the peace of Lee county, in favor of'Eoss B. Hughes and against "William M. Andrews, on which execution issued and was levied upon the buggy in dispute. That claimant Miller on his trial was nonsuited as mentioned in the justice’s transcript. That on the sixth day of March, 1847, the said nonsuit was ordered, and on the 8th day of March, 1847, the buggy was sold under the levy aforesaid to Callowhill E. Stone, and possession given by the constable; and that on the eleventh of March, 1847, non-suit was set aside and a new trial grafted, as set forth in said transcript.” April 29th, 1848.

The first error complained of in. the proceedings below, is that, “ The summons issued by the justice Was not served six days before the return day thereof, as required by the statute.”

Among other proceedings copied into the bill of exceptions, is the constable’s return, as endorsed oil the summons. By the return, it appears that the service was made by the constable on the fifteenth day of March, 1847, and the day appointed for the trial of the cause, as specified in the summons, was the twentieth day of March, 1847. This state of facts as to the service, gives the defendant at theramost but five days notice. The statute prescribing the mode of procedure, to be observed by justices of the peace in case of nonsuit and judgment by default, where such nonsuit or default is set aside and a new trial granted, requires notice to the opposite party of the setting aside thereof, and that “ the notice shall be served on the party or his agent six days before the trial, upon rehearing of the cause.” This service is therefore, defective, andtheobjec*11tion to it would prevail bad not tbe party making it, by bis own act, waived it. Tbe record shows that tbe defendant appeared on tbe twentieth of March 1847, tbe day set for rehearing, and by bis attorney demanded a jury trial; and that accordingly, a jury was called before the justice, in order to a full trial on tbe merits. Tbe forma of pleading as observed and required in tbe practice of tbe district court, are not necessary in trials before justices of tbe peace. After tbe, commencement of a suit before a justice of the peace, tbe proceedings of tbe parties may be, and mostly are oral. A proper entry of the material and important motions and acts of tbe parties concerned, is made in the docket of tbe justice, for tbe benefit of tbe parties in tbe legal adjustment of their rights. . Here tbe record of tbe justice shows that in obedience to tbe summons, and service thereof, tbe party appeared, and by bis attorney, consented to proceed to a trial of tbe cause by jury; that after so consenting, be sought to take advantage of tbe defect in tbe service of tbe summons. This be could not do. If be sought to avail himself of this objection, be should have done so before be consented to, or requested tbe calling of a jury. He might have appeared specially, to object to tbe service, and then, upon doing so if bis objection was overruled, be might have stood on tbe defence, yielding no consent or acquiescence; and thus avoided a waive of tbe defect in service. Conley v. Good, Breese 96; Gun v. Wheeler, 1 Scam. 555. Having consented, and elected to go to tbe jury with bis case, be was bound by such election. His objection was too late. lie bad waived it.

Tbe second error assigned is that, “after judgment by default bad been entered by tbe justice for costs of suit, be reversed bis judgment, and readjudicated tbe case by granting a new trial.” Tbe Itev. Stat. 324, § 3, authorises tbe justice, in case of nonsuit or default, to open the case anew upon a proper showing of tbe party, within a specified time according to tbe provisions of tbe statute. The record of tbe justice shows no error in this proceeding. *12The adjudication of the district court therein, furnishes no ground of complaint for error here.

The third error assigned, is the refusal of the court to give the instruction to the jury, which was asked for by the defendant’s counsel, which, as appears by the bill of exceptions was as follows:

The defendant asks the Gourt to instruct the jury “ that uo trial of the right of property could take place between the parties to this suit, after the property had been sold upon legal process and passed to a third person the purchaser,” which instruction was refused by the court, and gn exception taken by defendant’s counsel.

This proceeding is, by virtue of statutory provision, enacted for the protection of those who might be aggrieved by the officers of the law, seizing under execution process, their property, as the property of defendants, parties in the action and judgment upon which such execution had been issued, This proceeding, as the record shows, having begn commenced by the plaintiff against the plaintiff in thp execution; and in pursuance of the provisions pf the statute, the constable and the execution plaintiff were duly notified of the plaintiff’s claim to the property levied on. On the day set for the hearing, the plaintiff was nonsuited and judgment was entered against him for the posts of suit. The property, being a buggy, was in the possession of -the constable by virtue of the levy made pre* viously, and of course liable to sale to satisfy the judgment upon which the execution had issued, in the event of the claimant failing to make good his claim by judgment in his favor, in the proceeding under the statute. After the nonsuit, which was entered on the sixth day of March 1847, and, on the eighth day, the same month, the com stable in obedience to the mandate of the execution, pro-, ceeded and sold the property to one Callowhill E. Stone, into whose possession it was then delivered. On the elev-> enth day of the same month, the nonsuit was set aside, and a new trial granted by the justice at the instance of the claimant'. ■ The question here presented for adjudica* *13tion, is this; Did the property claimed by the plaintiff, in this action, continue to be subject to legal restraint in the hands of the constable, who held it by virtue of the execution and levy thereon, after the nonsuit and judgment for costs, so as to prevent the officer from proceeding to sell it? And did the renewing of the suit, by taking off the nonsuit, render the lien on the property good, by reviving it, as it was at the commencement of the action?

The constable was bound by the requirements of the statute, which prescribes the duties of such officer, when the execution is put into his hands, to proceed promptly to make the money of the defendant by levy, on his goods and chattels. Upon making the levy, he is directed to advertise the property and sell it within a time certain, and to make his return to the justice. The claimant of the property, having availed himself of the provisions of the act of the legislature by notifying the constable of his claim, and the suit having been commenced thereon before the justice, further proceeding under the execution and levy was by law suspended, until the termination of the trial of the right of property, (Rev. Stat., 332, §11.) until the claim of the plaintiff in that proceeding, should be “abated, dismissed, or a final decision had thereon.” The record shows that the constable did not proceed to sell the property, until after the action had been disposed of by a nonsuit, and judgment for costs had been entered. Two days afterward he sold the property on the execution, and delivered possession thereof to the purchaser. This he had a right to do. The proceeding by which he had been restrained from selling the property levied on execution, was legally at an end, and the obligations of official duty were upon him. He was not bound to wait until the claimant might, at the last moment allowed by law, have the judgment of nonsuit set aside and his action recommenced. In a proceeding like this, the party seeking the benefit of the statute must be vigilant, and act with due regard for. the rights of others interested, and the spirit of the law. The statute providing for the trial of the right of property, *14in terms not to be misconstrued, inculcates prompt and speedy action in the adjustment of the rights of the parties. Ey the entry of the judgment of nonsuit, the claimant was as much out of court, and his proceeding concluded, as if he had not commenced his action. This was the consequence of his own default, and it was his neglect, in not promptly recommencing his action, or opening the judgment of nonsuit, which left the property to be disposed of by the execution process, and thus pass from the possession of the constable; when delivered to the purchaser, it was beyond the reach of the claim of the plaintiff under the provisions of this statute. In view of the spirit of the law, we can see no difference between the termination of the suit by abatement or dismissal, and default or nonsuit. In either case the party might commence again. The statute only holds the property in duress, and restrains the constable from selling, until the termination of the suit by claimant. There could be no certainty that the party claimant would renew the proceeding, more than there was that he might resort to some other mode of redress. In a proceeding like this, interfering with the ordinary process of law, involving the obligations of ministereal officers of the law, and the rights of parties in legal action, strict compliance with the statute, and a vigilant observance of the spirit of the law, should be inculcated.

We are of the opinion therefore, that the court below, erred in refusing the instruction which was asked for, by the defendant’s counsel.

Judgment reversed.