SECTION IV. CERTAIN POINTS IN RELATION TO THE SERVICE AND RETURN OF PROCESS, NOT REDUCIBLE TO THE FOREGOING HEADS. 1. All defects in the return of process are cured, or waived, by the defendant's appearing and pleading in bar, or indeed taking any step which supposes the return to be valid ;(s) and this, whether he know of the defect or not.(t) The rule is, that the objection must be made in the very first instance, and it extends not only to a summons, warrant, and attachment, but to a venire or any other process, which operates as the foundation for some subsequent step in the cause. (u) But the mere act of appearing, for the purpose of raising the objection, will not be construed into a waiver, and it is undoubtedly enough that the party make his objection at any time before he himself has taken some step, or suffered some act to be done, which would presuppose its validity. (v) The same doctrine relates to a defect in the process itself. (w) Thus, should the defendant apply for an adjournment, or plead in abatement any matter not relating to the defect, demur, plead in bar, &c. &c. this would be a waiver of the defect in the original process or return. And so, if there be a defect in a venire or return, but the party suffer the jury to be sworn, or go on to trial without making the objection.(x) But if there be no appearance whatever, there can be no waiver, and the party may take advantage of any defect or irregularity on appeal or certiorari.(y) 2. The returns on all process may be either endorsed thereon, or be in the inner side, or annexed thereto.(z) In such case, the words of reference to the process, used in the return, should be adapted accordingly. 3. The constable cannot make a deputy to execute the process directed and delivered to him, but must execute it in his own proper person. (a) Every justice, however, who issues process, excepting a venire, whenever he shall judge it expedient, on the request of a party, may, by written authority endorsed on such process, empower any person, being of lawful age, (that is, of the age of twenty-one years,) and not a party in interest in the suit, to execute the same. And the person so empow ered, shall possess all the authority of a constable, in relation to the execution of such process, and shall be subject to the same obligations, but shall not receive any fee or reward for his services.(b) We stated ante, p. 505, upon the authority of several cases there cited, that the party himself might be deputed to execute process in his own favor. It would seem, however, since the revised statutes, that this is no longer so. The deputy must be some person uninterested in the suit. (c) The cases which established a contrary doctrine were decided before the revised statutes went into effect, and before there was any statutory prohibition in regard to plaintiffs, not constables, serving their own process. There is now nothing to prevent a constable from serving a summons, in which he is named plaintiff; the prohibition of the statute extending only to the deputation of parties in interest. The better opinion is, however, that a constable would not be authorized to serve a warrant or attachment in his own favor.(d) FORM OF A DEPUTATION TO BE ENDORSED ON THE PROCESS. SARATOGA COUNTY, SS. On the request of the within named plaintiff, I do adjudge it expedient to empower some proper person to execute the within process; and I therefore empower JOHN DENN, being of lawful age, and not a party in interest in the suit, to execute the same. February 1st, 1840. RANSOM COOK, Justice. (b) 2 R. S. 199, § 271, 272. (c) Id. § 271. (d) 4 John. 486. Cro. Car. 416. 2 Cowen, 436, 437. CHAPTER V. Of Appearance of the Parties. SECTION I. WHEN THE PARTIES ARE TO APPEAR. It is provided by statute, (a) that upon the return of à summons personally served, or on the return of an attachment duly served, the justice shall wait one hour after the time specified for the return of such process; unless the parties shall sooner appear. And if the plaintiff fail to appear within the hour; or within an hour after the time to which the cause may have been adjourned; in either case, judgment of nonsuit, with costs, is to be rendered against him.(b) Notwithstanding the precise and definite limitation of time thus prescribed for the justice to await the appearance of the parties, he may, for good reasons, delay calling the cause for a longer period; or, if the cause be called, permit the defendant, after the hour has elapsed, to appear, plead and enter upon his defence. Where a cause was adjourned until one o'clock P. M. of a day certain, and the justice, in consequence of being detained in the discharge of his official duties, as member of the board at a town meeting, did not call the cause until five o'clock of the same day; it was held regular for him to proceed and try the cause, although the defendant had appeared at the hour and departed from the place of trial. (c) It is, in general, true, that unless a cause is tried at the time appointed, or within one hour, such omission amounts to a discontinuance, and the cause is out of court; but this is not universally so. If the justice is engaged at the hour in trying an other cause which occupies him till after the time, that is a (a) 2 R. S. 165, § 46. (b) Id. 176, § 119. Vid. 9 John. 140. (c) 10 Wen. 102. good reason for the delay, and no rights are lost to either party. The justice may proceed, if he does so as soon possible after his other official engagements are disposed of. (d) The case of Barber & Crego v. Parker & Cook, (e) was as follows: Barber & Crego commenced a suit against Parker & Cook by summons, which was returnable on the 23d August, at one o'clock P. M. Between one and two o'clock, Parker, one of the defendants, appeared at the justice's office and demanded that the suit be called, the plaintiff not being present; it then lacked five minutes of the hour of two by a clock in an adjoining room. The justice told the defendant, that as time pieces varied, he made it a rule to wait five minutes after the clock struck, before he called a suit, unless the parties were present, and would do so at that time. The clock struck two, and the defendant again requested the justice to call the suit, saying that he would not wait any longer. About a minute after, the justice saw the attorney of the plaintiffs approaching, and told the defendant that he would call the cause the moment he entered the office. The defendant said that he had demanded to have the suit called since two o'clock, and that he would not answer to it, and left the office. The attorney for the plaintiffs met the defendant and told him he was ready to attend the suit, and entered the office within two minutes after two o'clock. The cause was called, the defendant did not appear. The attorney put in his declation, and, at his request, the trial was adjourned to a future day; at which day the plaintiffs appeared, but the defendants did not appear. The justice, after hearing proofs, rendered judgment against the defendants, which judgment was reversed by the common pleas. The cause was removed to the supreme court by writ of error; and Nelson, J., in delivering the opinion of the court, remarks: "In Shufelt v. Cramer, 20 John. 309, it was decided, that, as a general rule, a justice should wait an hour for the appearance of parties, and no longer, unless a reasonable excuse was shewn for farther indulgence. We do not believe that the legislature intended to change the rule as thus settled, and the statutory provision above referred to should be construed in conformity to it. Many circumstances may exist, rendering it necessary for the justice to delay beyond the hour to call the cause, such as his being engaged in other official duties, and the like. If no reasonable excuse exists or appears, the cause should be called within the time designated by the statute, and a refusal would be error. Independently of this construction, the justice was right in this case, as the defendants wilfully (d) 10 Wen. 103, per Savage, Ch. J. (e) 11 Wen. 51. abandoned their defence when the suit was about to be called. 15 John. 496." In the case last cited, the cause had been adjourned to a certain day and hour, when the defendant appeared, but the justice did not arrive until an hour after, and, in about twenty minutes, was followed by the plaintiff; the defendant, on seeing the plaintiff, went away, declaring that the cause was out of court, although apprized by the justice that he should call it immediately: held, that the delay did not, under the circumstances, amount to a discontinuance, and that a judgment rendered for the plaintiff in the absence of the defendant was regular; the defendant being considered as having voluntarily abandoned the cause.(f) So, where after issue on a plea in abatement, the defendant appeared at the time appointed on the adjourned day, and the plaintiff did not appear; but the justice, being informed that he was near at hand, delayed calling and nonsuiting him, on motion of the defendant, who soon after left the court, and the plaintiff, in about an hour, appeared, and the justice proceeded to hear and decide the cause.(g) But where a summons was made returnable at two o'clock P. M., and the justice appeared at the place appointed at four, and opened his court, and, the defendant not appearing, made inquiry whether he had been there, and being informed that he had not, adjourned the cause to another day, when he heard the cause and gave judgment: it was held, that this delay amounted to a discontinuance of the suit.(h) The absence of the justice on the return or adjourned day, operates as a discontinuance of the suit; but the parties may afterwards proceed to trial by consent. (¿) In certain cases a defendant may interpose his defence to the action, notwithstanding his omission to appear within the time limited by the statute. The rights of defendants, under such circumstances, are frequently the subject of controversy; and questions in regard to them arise almost daily. I hope, therefore, to be excused for citing at large the case of Pickert v. Dexter.(j) It may be considered as settling the law on this subject; and the opinion of the court furnishes an excellent review of the various authorities which have a bearing upon the question under consideration. Pickert sued Dexter in a justice's court by summons, returnable on the 9th April, 1831, at eight o'clock A. M. The summons was returned personally served, and at the time of its return the plaintiff appeared, but the defendant did not appear. Proceedings were suspend (f) Vid. 15 John. 504. (g) 11 id. 459. (h) id. 407. (i) 1 Cowen, 245. |