§ 7546. Objection to Service and Return, how Made. Under some systems of procedure, corporations are allowed to appear for the special purpose of making objection to the manner in which process has been served upon them, or rather to object that process has not been served upon them, but has been served upon some one not their agent.' Objections of this kind come with an ill grace from domestic corporations suable within the venue, and the courts look upon them with disfavor. The writer is of the opinion that such an appearance ought to be regarded as an appearance for all purposes. Where such a motion is grounded upon a misdescription of the corporation in the sheriff's return, then it must state the other name, on the principle applicable to pleas in abatement that the defendant must give the plaintiff a better writ.' Where the objection does not relate to the manner of serving the process, or acquiring jurisdiction over the defendant, but is grounded on the proposition that the situs of the contract sued on was such that the court was without jurisdiction of the cause of action named in the declaration, it cannot, it has been held, be taken by motion to quash, but ought to be taken by plea so as to allow a review by writ of error based on the record of exceptions. In other words, Collier v. Morgan's La. &c. R. Co., 41 La. An. 37. 'Nye v. Burlington &c. R. Co., 60 Vt. 585. Ibid. Where the defendant was described in the writ as the "Burlington and Lamoille Railroad Company, a company organized under the laws of this State," it was held consistent with the conclusion that the defendant was a corporation upon which service of process might legally be had, under the governing statute, by delivering a copy to its clerk. A motion to dismiss on the ground that the service was illegal, which neither alleged nor denied the corporate existence of the defendant, and which did not point out the respect in which the service was defective, nor in what manner it could be corrected, was properly overruled. Ibid. Maxwell v. Speed, 60 Mich. 36; 8. c. 26 N. W. Rep. 824. Where the service is good, and the plea in abatement filed by the corporation consequently bad, it will not be an error for which the judgment will be reversed, that the plaintiff proceeded to take a judgment by default against the corporation in disregard of the plea, without first moving to have it stricken from the files. But it was said that "if the defendant corporation had filed an affidavit of merits, and asked that the default might be opened or the judgment vacated in the court below, there might have been good such an objection is one which goes to the merits, and should be made as objections to the merits are made. § 7547. Service of Notice of Appeal. The law on the subject of the necessity of giving notice of appeal, varies from the greatest technicality to the greatest liberality. For instance, in Missouri, in the case of appeals from justices of the peace to the Circuit Court for the purpose of a trial de novo, the greatest strictness is demanded in following the statutes in regard to giving notice of the appeal, as will be seen by the cases cited in the note. Coming to the other end of the oscillation of the pendulum, we find decisions to the effect that, in proceedings originating in the probate court and removed to a higher court for trial de novo, a statutory provision for giving notice of an appeal is regarded as directory merely; so that, where notice has not been given as prescribed, the appellate court may make an order for some suitable service of it. It should seem that this is the correct view where the cause is merely removed to a higher court for a trial de novo; since such an appeal is in no case, like a writ of error at common law, the commencement of a new action, but the object of giving the notice is merely to afford the opposite party time to prepare for a new trial in another ground, in the discretion of that court, for granting such an application. But it has contented itself with attacking the jurisdiction of the court on writ of error; and the defect, if any, in the proceedings to judgment after the filing of the plea is one of irregularity in practice, and not one operating in any way upon the jurisdiction." Shickle &c. Co. v. Wiley Construction Co., 61 Mich. 226; 8. c. 1 Am. St. Rep. 571. As to the practice of striking out pleas, answers, or defenses, see People v. McCumber, 18 N. Y. 315; 8. c. 72 Am. Dec. 515; also an extended note in 72 Am. Dec. 521, et seq.; also Hayward v. Grant, 13 Minn. 165; 8. c. 97 Am. Dec. 228. Rowley v. Hinds, 50 Mo. 403; Purcell v. Hannibal &c. R. Co., 50 Mo. 504; Nay v. Hannibal &c. R. Co., 51 Mo. 575; Page v. Atlantic &c. R. Co., 61 Mo. 78; Thurston v. Kansas Pac. R. Co., 1 Mo. App. 400; McGinness v. Taylor, 22 Mo. App. 513; Fink v. Berberich, 7 Mo. App. 577; Jordan v. Bowman, 28 Mo. App. 608; Horton v. Kansas City &c. R. Co., 26 Mo. App. 349. Woodward v. Spear, 10 Vt. 420; Donovan's Appeal, 40 Conn. 154. The Supreme Court of Michigan incline to the same view: Simpson v. Mansfield &c. R. Co., 38 Mich. 626, 629. court.' Of course, if the proceeding in the appellate court is in the nature of a new action, as in case of a writ of error at common law or a bill of review in chancery, it must be commenced by new process, without which the appellate court will acquire no jurisdiction. Under a statute of Michigan,2 in the case of an appeal from the probate court in a proceeding by a corporation against the estate of a deceased person, if the executors appeal, the probate judge can direct how service of the notice of appeal shall be served on the corporation, and may name the officer, agent, etc., on whom it shall be made. It is, therefore, not necessary that the more general statute which prescribes how process, pleadings, etc., shall or may be served on corporations, or on the particular class of corporations, shall be complied with, where there is such a special statute. On the contrary, if there is no special statute directing how notice of an appeal shall be served on a corporation, the court will cause it to be served in the same manner as is provided by the general statute for the service of original process on corporations in actions against them." 1 So stated by Mr. Justice Cooley in Simpson v. Mansfield &c. R. Co., 38 Mich. 626, 629. 8 Comp. Laws Mich., § 4442. Simpson v. Mansfield &c. R. Co., 38 Mich. 626. • Ibid. Pacific Coast R. Co. v. Superior Court, 79 Cal. 103; s. c. 21 Pac. Rep. 609. 5995 § 7552. Appearance Cures Defects in Service of Process, and Waives Jurisdiction over the Person. It is a general principle in the law of procedure that a voluntary appearance by the defendant, for the purpose of contesting the merits of the action brought against him, waives any right of objection for want of process, sufficiency of process, want of service of process, or sufficiency of service of process, by which it was attempted to bring him into court.' This principle is equally 1 Cartwright v. Chabert, 3 Tex. 261; 8. c. 49 Am. Dec. 742; Pixley v. Winchell, 7 Cow. (N. Y.) 366; s. c. 17 Am. Dec. 525; Barber v. Hubbard, 3 Code Rep. (N. Y. ) 171; Petrie v. Fitzgerald, 1 Daly (N. Y.), 405; Webb v. Mott, 6 How. Pr. (N. Y.) 439, 441; Hubbell v. Dana, 9 How. Pr. (N. Y.) 424; Coppernoll v Ketcham, 56 Barb. (N. Y.) 113; Ballouhey v. Cadot, 3 Abb. Pr. (N. 8.) (N. Y.) 123; Hanna v. McKenzie, 5 B. Mon. (Ky.) 314; Knox v. Summers, 3 Cranch (U. S.), 496; Rowley v. Stoddard, 7 Johns. (N. Y.) 207; Tuberville v. Long, 3 Hen. & M. (Va.) 309. There is a view, not based upon any sound conception, that this principle applies only to mere irregularities in the process or in its service, and not to defects of a radical nature: Beall v. Blake, 13 Ga. 217; s. c. 58 Am. Dec. 513; Little v. Ingram, 16 Ga. 194, 198; Little v. Little, 5 Mo. 227; s. c. 32 Am. Dec. 317. Compare Wynn v. Booker, 22 Ga. 359, 362. As where applicable in actions against corporations. Although the service of the summons may be defective so as not to give jurisdiction over the corporation, yet if the corporation appears and pleads to the merits, it thereby waives the defect and submits itself to the jurisdiction of the court. Thereafter it cannot raise the question whether the person upon whom the process was served was its agent or not. But a voluntary appearance does not waive jurisdiction over the subject-matter of the action; because it is a principle that the powers of courts over the subject-matter of actions cannot be enlarged by the consent of parties litigant. - § 7553. In Case of Foreign Corporations, Waives Exemption from being Sued. So, if the relation of a foreign corporation to the domestic State is such that, under the statutes of such State, or otherwise, it enjoys an immunity from being sued therein, if it is so sued, and appears in the suit, by attorney or otherwise, for the purpose of contesting the merits, it waives its privilege and voluntarily submits to the jurisdic no process had been attached to the original declaration (Beall v. Blake, supra), or where the process did not run in the name of the State: Little v. Little, supra. But this last decision, although reprinted in the American Decisions as though it was still authority, was a mere judicial aberration, and was overruled in Davis v. Wood, 7 Mo. 162, where it was held that the provision of the constitution of Missouri requiring all writs to run in the name of the State was directory merely, and that a writ defective in this particular was cured where the defendant appeared and answered to the merits, or confessed the defendant's demand. See also Doan v. Boley, 38 Mo. 449; Jump v. McClurg, 35 Mo. 196. brought into court as cannot be waived by his voluntary appearance, which in itself is a submission to the jurisdiction of the court. The only object of the process is to bring him into court and to enable the plaintiff to recover a judgment against him in case he refuses to come in. If he comes in for any other purpose than to object to the mode by which it is attempted to bring him in, he accomplishes, by his voluntary action, the purpose of the process; and it is the sheerest nonsense to allow him, in some future proceeding, to question the validity of the method by which he has been brought in. 1 Mineral Point R. Co. v. Keep, 22 Ill. 9; s. c. 74 Am. Dec. 124; Union Nat. Bank v. First Nat. Bank, 90 Ill. 56, 58, where it is held that the fact of defective service can only be put in issue by a plea in abatement. |