Hanson v. Hoitt

In case of an appeal from the probate court, this court will not, on a motion to dismiss, which was not seasonably made, inquire into alleged non-compliances with statutory pre-requisites to air appeal. Such objections will be taken to have been waived by the delay. And so as to the invalidity of an alleged express waiver, even when the allegation of such invalidity is founded on a provision of the Constitution. Motions to dismiss a cause should, as a general rule, be made at the first term, or objections available in that form will he taken to have been waived. Pleading the general issue is, of itself, a waiver. A waiver of all informalities and irregularities, made by a counsellor who has the sole charge of a cause, is binding upon his client.

Appeal from the report of the commissioner of insolvency, on the estate of E. Hoitt, deceased. The appeal is dated April 28, 1838. The register certifies that the appeal and declaration were filed in the probate office t! on the 9th day of June, 1838, being within thirty days of the acceptance of the report of the commissioner.” The declaration filed with the appeal was in assumpsit, containing two counts, viz: as for goods sold and delivered, and for work and labor. A specification under these counts was filed at the August term, 1838. At the January term, 1842, the declaration was amended by filing another count upon an account annexed. At the January term, 1840, the defendant pleaded the general issue, and filed notice that he should rely upon the statute of limitations. At the same term an auditor was appointed, who made a report. At tho February term, 1842, the defendant moved the court to quash and dismiss the appeal, for the following reasons, viz :—1. For that the said appeal was taken and claimed in writing on the 2Slh of April, 1838, and the declaration was not filed in the probate office till the 9th of June, 1838. 2. For that an appeal in this case was not claimed in writing, and a declaration on the plaintiff’s claim filed in the probate office at any time within thirty days next after the acceptance of the report of the commissioner by the judge of probate.—3. For that notice of this appeal was never served upon or issued to the defendant, nor was he ever served with a copy of the declaration.—.4. For that the plaintiff does not produce a certificate of the judge of probate, that notice of said appeal was issued to said defendant, administrator as aforesaid, as is required by the statute. It appeared in evidence that Ira A. Eastman, Esq., was fully retained for the defendant, “in case an appeal should be taken,” but before the action on the appeal was entered ;—. that he was present at and consented to the entry of said action, and at that term had the sole charge of it, though Mr. Bartlett came in at the second term, and other counsel subsequently came in;—that while he had the sole charge of the case, there was an agreement between the plaintiff’s counsel and said Eastman, that no captious objections should be taken in the case on cither side, but that it should be tried upon its merits. Said Eastman testified that the action was entered on motion of the plaintiff’s counsel, as he thought, in October, 1838, at an adjournment of the August term; and that he probably should have filed the plea and set-off, according to the strict rules of court, had it not been for the understanding between said counsel and himself; but that having had a conversation with the opposing counsel as to objections on account of some irregularities in the probate court, or informality in the appeal, ho considered them all waived on the pari of the defendant, and at the time of entry so staled to (he court. Mr. Eastman could not say when he informed the defendant of the entry, but testified that, at some time subsequent, he did inform him of the entry, and that he had waived the objections, thinking them neither just or legal;—that he did not go into the details of the objections, and that the defendant expressed no dissatisfaction. Mr. Eastman ceased to be register of probate July 1,1839. At some previous time he made the order of notice on the appeal, and in January, 1839, furnished Hanson’s counsel with copies in the case ; but he could not testify whether or not he ever made out any papers to be served on Hoitt, nor whether any ever were served on him.