Hembree v. Campbell

• Decision Date: 31 January 1844
• Citation: 8 Mo. 572
• Parties: HEMBREE v. CAMPBELL.
• Court: Missouri Supreme Court

8 Mo. 572

HEMBREE

v.CAMPBELL.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO DADE CIRCUIT COURT.

PHELPS, for Plaintiff. Appearance and pleading to the merits cured any defect in the service of the writ. Whiting et al. v. Budd, 5 Mo. R. 543; Barnett and Ivers v. Lynch, 3 Mo. R. 369. Want of service cured by appearance and defense. Griffin and Kinote v. Samuel, 6 Mo. R. 50. That defendant cannot take advantage of any error or defect in the process after he has appeared to it. Tidd's Pr. 91, 434.

WINSTON, for Defendant. 1. The court had no right to issue either of the subsequent writs, until there had been a return of the first writ. 2. The writ which was served upon the defendant was directed to the sheriff of the wrong county, and therefore a mere nullity, and that the appearance of the said defendant did not preclude him from afterwards taking advantage of a void writ. 5 Mo. R. 227. 3. The plaintiff did not move the court below to set aside the judgment rendered in this cause, as he ought to have done. 4. The judgment of the court below, sustaining the motion to quash the writ, is not such a final judgment from which an appeal or writ of error will lie to this court.

SCOTT, J.

Hembree brought an action of trover against Campbell, in the Circuit Court of Dade county. Two writs, or summons, were issued by the clerk of said court, directed to the sheriff of Dade county, the last of which was returned, non est inventus. A writ was thereupon directed to the sheriff of Polk county, which was served on the defendant, and returned. At the return term, Campbell appeared, and plead not guilty; and afterwards, during the same term, moved the court to quash the writ, because it was improperly directed, which motion was sustained, and the suit dismissed.

The question is, whether the motion was properly sustained by the court below? The statute regulating Practice at Law directs, that a suit instituted by summons or capias shall be brought, when the defendant is a resident of the State, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found. It was clearly illegal for a plaintiff residing in Dade county to bring suit against a party residing in another county. But the Circuit Court of Dade county is a court of general jurisdiction; it had jurisdiction of the subject-matter of this suit; and if the defendant, being served with its process, appeared and plead to the merits of the action, thereby acknowledging its jurisdiction of his person, he would not be allowed afterwards to object to the regularity of the proceedings. When a defendant is sued in a wrong county, it is clear, under the act above-mentioned, he can, by pursuing the regular steps, defeat the plaintiff. But exceptions of this kind do not affect the merits of a controversy; they do not show that the plaintiff has no right to...