Lowe v. Stringham

By the Court,

This was an action of replevin, commenced before a justice of the peace. The defendant appeared, and before answering moved to dismiss the suit, because tbe writ was returnable on the third day after it issued, not excluding a Sunday which intervened. The motion was denied, and the defendant excepted. He then answered and went to trial, and the plaintiff recovered judgment. The defendant appealed, and made the same objection in the circuit court, which was overruled and an exception taken.

We think the objection was good, and if properly taken advantage of, that the writ ought to have been quashed. The statute provides that the warrant “ shall be made returnable on the third day after it shall issue (Sundays excepted),” &c. R. S., chap. 120, sec. 134. It was contended by the respondent’s counsel that Sunday was only to be excepted when the third day fell on Sunday, and in support of this position he cited 7 Cow., 147; King vs. Dowdall, 2 Sandf. (S. C.), 131, and some other cases in New York, where it was held that intervening Sundays are to be included in the computation of statute time. But those were cases where *224the statute was silent on the subject, and simply provided that the thing should be done within so many days. But our statute expressly says that Sundays are to be excepted, and it would seem to have been inserted expressly to exclude the construction which had been adopted in those cases. But even without such an exception in the statute itself, there are cases holding a doctrine opposite to that of the ones just referred to. Anonymous case, 2 Hill, 375, note b, 376; Thayer vs. Felt, 4 Pick., 354. The doctrine of these cases, excluding intervening Sundays where the statute provides that something shall be done within a certain number of days less than a week, seems more reasonable than that of the others, even in the absence of any exception in the statute itself. But where such exception exists, there would seem to be no room for doubt on the subject. This conclusion is also fully sustained by a reference to the nature of the case. The time for the return is short. The action is required to be tried on the return day, unless cause is shown as for a second adjournment in other cases. R. S., chap. 120, sec. 142. Allowing Sunday to be counted as an 'intervening day, the warrant might be issued on Friday night and made returnable on Monday morning, or on Saturday night and made returnable on Tuesday morning, and thus the defendant have only one business day in which to prepare for trial. This result would seem clearly to show that the legislature intended, as they said, to except Sundays, and that they introduced the exception expressly to avoid the doubts that might have arisen from the conflicting decisions upon the point, where the statute was silent.

But although the objection was good, we think the defendant waived it in several ways. The record of the justice shows that the parties appeared by their counsel, which of course, in the absence of any qualification, must be construed to be a general appearance. And it is a familiar rule, that a general appearance waives any defect in the process. This is/ too well settled to need the citation of authorities. To avoid the effect of this rule, it is the common practice, when it is desired to take advantage of such defects, to appear special-] ly for that purpose only.

*225We think it is also a waiver of such a defect for the party, after making his objection, to plead and go to trial on the merits. To allow him to do this, would be to give him this advantage. After objecting that he was not properly in court, he could go in, take his chance of a trial on the merits, and if it-resulted in his favor, insist upon the judgment as good for his benefit, but if it resulted against him, he could set it all aside upon the ground that he had never been properly got into court at all. - If a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection. Caughey vs. Vance, 3 Chand., 315-16; Thayer vs. Dove, 8 Blackf., 567.

We also think the defendant could not take advantage of this objection on an appeal to the circuit court, the judgment being over $15. The object of an appeal in-such cases is to try the case anew in the appellate court on its merits, and not to review errors of the justice. The taking of such an appeal is equivalent to an appearance, and gives the appellate court jurisdiction over the person, whether the service of the process before the justice .was sufficient for that purpose or not. Barnum vs. Fitzpatrick, adm'r, &c., 11 Wis., 83, and cases cited. See also Hester vs. Murphy, 1 Ark., 55; Ball vs. Kuykendall, 2 id., 195; Ser vs. Bobst, 8 Mo., 506; Matlock vs. King, 23 id., 400. The remedy of the party in such a case would seem to be that pointed out in Wood vs. Randall, 5 Hill, 264, that is a common law certiorari.

We think also there was no error in the instructions of the circuit court in respect to the plaintiff’s right to the benefit of the exemption law. The statute makes no discrimination between temporary and permanent residents, nor does it purport to confine its priviléges to residents at all. It exempts certain articles of the debtor and his family. And we think it would be entirely inconsistent with the beneficent intentions of the statute as well as with the dignity of a sovereign state, to say that the temporary sojourner, or even the stranger within our gates, was not entitled to its protection.

The judgment is affirmed, with costs.