Bohn v. Devlin

• Decision Date: 31 March 1859
• Citation: 28 Mo. 319
• Parties: BOHN, Respondent, v. DEVLIN, Appellant.
• Court: Missouri Supreme Court

28 Mo. 319

BOHN, Respondent,

v.DEVLIN, Appellant.

Supreme Court of Missouri.

March Term, 1859.

1. After a defendant in an action before a justice of the peace appears and consents to a continuance, it is too late to object to the jurisdiction of the justice on the ground that the defendant did not reside in the township in which the suit is brought.

2. A notice to take depositions that is unsigned is insufficient; depositions taken upon such a notice, the opposite party not attending, either in person or by attorney, at the time and place specified in the notice, may be suppressed.

Appeal from St. Louis Law Commissioner's Court.

C. C. Simmons, for appellant.

A. M. & S. H. Gardner, for respondent.

NAPTON, Judge, delivered the opinion of the court.

The defendant in this case did not reside in the township where the suit was brought, and the proceeding, being in this respect irregular, could no doubt have been set aside had the proper steps been taken in time. But the defendant appeared and consented to a continuance. As the justice had undoubted jurisdiction over the subject-matter, and the appearance and consent of the defendant gave jurisdiction of the person, the defects and irregularity in the process must be considered as waived. (Davis v. Wood, 7 Mo. --; Myers v. Woolfolk, 3 Mo. 246; Busnell and others v. Lynch, 3 Mo. 261; Malone v. Clark, 2 Hill, 657.)

The notice to take depositions was insufficient, as it was not signed. As it had no signature, and the plaintiff to whom it was addressed did not attend at the time and place specified in the notice, either in person or by attorney, the deposition was, in our opinion, properly suppressed.

The other judges concurring, judgment affirmed.