Carroll v. Dorsey

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.

Mr. Chief Justice TANEY delivered the opinion of the court.