Opinion
(June Term, 1837.)
Accepting of a declaration, and entering a plea, is a waiver of any defect of process; and where process was executed upon five out of six defendants and all joined in a plea, the fact of its not having been executed upon all, does not work a discontinuance of the cause.
THE defendants, together with one Rogers, were impleaded in the Superior Court of Buncombe, by the plaintiff, in an action of trespass vi et armis. The writ was executed on all but Rogers. On the return of the writ, there was the following entry.
No counsel appeared for either party in this Court.
"And thereupon the defendants, by G. W. Candler their attorney, came and defend the force and injury, when, c., and say that they are not guilty of the supposed trespass above laid to their charge, or any part thereof, in manner and form as the said Russel L. Jones hath above complained of them. And of this, they, c."
At the last, which was the trial term, the plaintiff entered a nolle prosequi as to Rogers; but his Honor, Judge PEARSON, thinking that the fact of Rogers not having been taken, had worked a discontinuance of the cause, judgment was entered accordingly; and the plaintiff appealed.
— By an appearance, and taking a declaration and entering a plea, you waive all objections to the process. 2 Stra. 1072. The appearance by attorney is evidence of notice. 1 Hay. Rep. 405. The defendant Rogers, may not probably have signed the power of attorney, to Mr. Candler, or authorized him to appear; the power of attorney is not inserted in the case sent here. But as the record now stands, the appearance and plea stands joint for all the defendants, including Rogers; and we must take it, that the attorney had the power to appear for him. If Rogers gave no power to the attorney, and the defendants should hereafter move the Court to amend the record, by restricting the appearance and plea to those defendants who were actually arrested under the writ, the motion will be granted, we presume, on condition that the plaintiff have leave to enter a nolle prosequi, as to Rogers, as of the term the defendants put in their plea. In actions ex delicto, the plaintiff may enter a nolle prosequi as to some of the defendants, and proceed against the others, at any time before final judgment. 2 Archb. Prac. B.R. 249, ( and the authorities there cited.) Looking at the record as exhibited to us, we think the case was not discontinued in consequence of the process not having been run out as to Rogers. The judgment must be reversed, and a venire de novo awarded.
PER CURIAM. Judgment reversed.