Jane Carroll, Maria Fitzhugh, Et Al Devisees of Daniel Carroll of Duddington, Plaintiffs In Error v. Nicholas Dorsey, Noah Dorsey, Achsah Dorsey, Tristam Dorsey, Heirs At Law of Alfred Dowson, Deceased
| Decision Date | 01 December 1857 |
| Citation | 61 U.S. 204,15 L.Ed. 803,20 How. 204 |
| Parties | JANE CARROLL, MARIA C. FITZHUGH, ET AL., DEVISEES OF DANIEL CARROLL OF DUDDINGTON, PLAINTIFFS IN ERROR, v. NICHOLAS DORSEY, NOAH DORSEY, ACHSAH DORSEY, TRISTAM S. DORSEY, HEIRS AT LAW OF ALFRED R. DOWSON, DECEASED |
| Court | U.S. Supreme Court |
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.
A motion was made to dismiss it, by Mr. Bradley and Mr. Charles Lee Jones, for the following reasons, viz:
That it is manifest, by the record filed in this court in the said cause, that the judgment therein was rendered in the Circuit Court of the District of Columbia, at the October term of said court, in the year 1851.
That the appeal bond filed therein bears date the 27th day of May, 1853; that the recital of the said bond sets out a writ of error, returnable to the term of this court to be holden on the first Monday of December then next ensuing; that the said bond was approved on the 17th day of December, 1853, being after the return day of said writ, as set out in the said bond; that the citation and writ of error were both issued on the 17th day of December, 1853, and the said writ of error was returnable to this court, without designating to what term the same should be returned; that the transcript of the record of the said cause was not returned to or filed in this court until the December term, 1856.
And therefore they say, for the said irregularities in the said proceedings, patent on the face of the record of the said cause, the said cause ought to be dismissed.
The motion was opposed by Mr. Coxe, who, after explaining the cause of the delay, contended that inasmuch as a general appearance was entered at December term, 1856, the motion to dismiss now came too late.
As a general rule, defects in mesne process are cured by appearance. (1 Bos. and Pul., 105, 250, 644.)
In 3 Cranch, 496, process had irregularly issued, in contravention of the express language of a statute prescribing to whom it should be directed. This irregularity was specially pleaded and demurred to. The court unanimously held that the appearance by attorney cured all irregularity of process.
In Harrison v. Rowan, 1 Peters C. C. R., 489, the true distinction is taken. It is said the eleventh section of the judiciary act, which relates to the service of process, is not a denial of jurisdiction, but the grant of a privilege to the defendant not to be sued out of the State where he resides, which he may waive by a voluntary appearance. (14 Peters, 174, 299.)
In 3 Dallas, 87, one error alleged was, that a monition should have issued; but this court held, that if this was a defect inquirable into by it, it was cured by appearance. (8 Wheat., 699.)- In 4 Cranch, 180, it was held, that where the writ of error is returned, although not at the first term, the appearance of defendant in error waives all objection to the irregularity.
In 3 Howard, 693, McDonogh v. Millaudon, the party by appearance and delay was held to waive all objection; and in 13 Howard, Buckingham v. McLean, a motion at a subsequent term after appearance was held to be too late.
As to any irregularity in the form of the writ, that at most is a mere clerical error, and cannot prejudice the parties in the case.
A motion has been made to dismiss this case, for want of jurisdiction.
It appears that an action of ejectment was brought by the plaintiffs in error against the defendants, in the Circuit Court of the District of Columbia, and upon the trial the verdict and judgment was for the defendants.
The particular day on which the judgment was rendered is not given; but it is stated as a judgment on the third Monday in October, in the year 1851, which it appears was the first day of the term. But it also appears that two exceptions were taken at the trial by the plaintiffs, one dated the 20th and the other the 22d of November; so that the judgment would seem to have been rendered a few days before the December term, 1851, of this court.
No steps were taken to bring it here for revision, until the 27th of May, 1853, when an...
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