Hayes v. Shattuck

Norton, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

This is an action of ejectment, in which the plaintiff claims title through a decree of foreclosure of a mortgage claimed to have been executed by one McMillan and his wife upon the premises in question. The defendant claims under a lease from McMillan and wife.

On the trial, the plaintiff offered in evidence the record of the foreclosure proceedings, to which the defendant objected, on the ground that it appeared that no summons had been issued in the case, and no evidence was given of an authority to the attorney who put in an answer for the defendants. The authority of an attorney at law to appear will be presumed where nothing to the contrary appears. The question whether a married woman could alone authorize an attorney to appear for her does not arise, inasmuch as the appearance in the case in question was for both husband and wife. Although the action is said, by section twenty-two of the Practice Act, to be commenced by the filing a complaint and issuing a summons, yet by section thirty-nine it is provided that [55]a voluntary appearance shall be equivalent to personal service of the summons. Putting in an answer is an appearance; and such an appearance must be held to be a waiver of the mere formality of issuing a summons, the service of which in such case becomes unnecessary. The only purpose of the summons is to bring the defendant into Court. It is constantly said by Courts, when actions are commenced by the service of process, as by capias ad respondendum, that a voluntary appearance waives all defects of process, even when objection is taken in the same action. Under our practice, the plaintiff, by filing his complaint, goes himself into Court; and although he may not choose to take out a summons, we think he cannot object to the defendant coming in and answering the complaint any more than he could object to the defendant’s voluntary appearance after the plaintiff had taken out a summons which he did not choose to serve. Quite as little can the defendant in a collateral action object that there was'no action pending after having voluntarily put in an answer to the complaint on file.

It is objected that the mortgage was not duly executed by the wife and her husband so as to bind the property; but all inquiry into that subject is concluded by the decree of foreclosure and sale in an action to which the persons executing the mortgage were parties.