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54 Mass. 165

Smith v. Robinson

Massachusetts Supreme Judicial Court

Decided October 15, 1847

Massachusetts Supreme Judicial Court · decided 1847-10-15

This was an action of assumpsit. The writ was directed ‘ to the sheriff of the county of Worcester, or his deputy, oi the constable or constables of Hardwick.” The ad damnum was eighty six dollars ; and the writ was served by a constable of the town of Hardwick, who, by the plaintiff’s order, arrested the defendant.

Decided 1847-10-15

Dewey, J.

¶1The 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.

¶2In 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.

¶3The 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.

¶4Exceptions overruled.

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