Page:Federal Reporter, 1st Series, Volume 2.djvu/200

 CRANE ». PENNY. liiô �few days after judgment was entered. It is true, they did not know that there were three judgments, and may have supposed there was but one. This, however, is immaterial. They knew the principal fact that the claim was in judgment, and if they did not know the details it was because they did not choose to inquire. On the first of August the trustees passed a resolution, reciting that she had recovered judg- ment, and was designing to enforce payment, and authoriz- ing the president to execute a chattel mortgage in satisfaction of it. It is claimed that this resolution was obtained by fraudulent practices on the part of Mr. and Mrs. Penny, in pursuance of their design to seeure her an illegal preference. But on the twenty-seventh of August, after ail attempts to negotiate a settlement between the parties had terminated, and before the bankruptcy, the corporation applied to the court for leave to corne in, have the defaults opened, and to defend the action, or for such other relief as the court might grant. I think it is impossible to contend that this did not cure and waive any defeet in. the service of the summons, except so far as that court might, upon this application, make the irregularity the ground of vacating the judgments, and setting aside absolutely, if it saw fit to do so, the service of the summons. It was clearly a submission to the jurisdic- tion of the court — a consent to receive such measure of rep- aration of the wrong done as the law, acting through that court, would award them. From the form of the papers used on the application, and the order to show cause obtained, it is, I think, more properly to be regarded as a motion to open the default, and to be let in to answer; in itself waiving, even in that court, ail questions of jurisdiction. It seems to have been so understood at t,he time. But as an application for general relief it may be considered also as a motion insisting on the extreme view of the nullity of the service of the sum- monses, and the absolute vacation of the judgments; but the prayer was in the the alternative, and, in any view of it, it was a submission to the jurisdiction, for the purpose of hav- ing the judgment of that court on the relief to which they '*'T.2,no.2— 18 ����