Smith v. Robinson

Massachusetts Supreme Judicial Court
Smith v. Robinson, 54 Mass. 165 (Mass. 1847)
Dewey

Smith v. Robinson

Opinion of the Court

Dewey, J.

The present is one of those objections that are cured by a general appearance. The only object of the service of the writ by a proper officer is, to bring the party into court; and if he voluntarily comes in and enters his appearance as a paity on the record, any defect in the service is *167cured. It would be otherwise if the defendant had come in specially, saving to himself all advantages, and for the alleged purpose of taking advantage of the defect of service. Knox v. Summers, 3 Cranch, 496. Pearson v. Rawlings, 1 East, 77. Fox v. Money, 1 Bos. & Pul. 250. Fletcher v. Wells, 6 Taunt. 191. Rawes v. Knight, 7 Moore, 461.

In the present case, not only was there a general appearance entered at the first term, but a continuance of the case and further appearance from term to term to the fourth term, when, for the first time, the objection was raised of a defective service of the writ.

The case differs essentially from those where there is a want of jurisdiction of the subject of the suit. In such cases, neither appearance nor direct consent of parties would give jurisdiction; and a motion to dismiss may be sustained at any stage of the proceedings. But if the court have jurisdiction of the subject, and the only alleged defect is that of want of jurisdiction of the person, that may be cured by a general appearance.

Exceptions overruled.

Reference

Full Case Name
Moses Smith v. Nelson Robinson
Status
Published