
    Stockdale v. Buckingham, et al.
    
    1. Appearance. A motion by a defendant for a continuance operates as a waiver of any defects in the service of notice and gives the court jurisdiction of the parties.
    
      Appeal from, Webster District Court.
    
    Saturday, October 6.
    
      John Garctghty, for the appellants.
    
      Meservey $ Bassett, for the appellees.
   Lowe, C. J.

At the November term 1859, of the Webster District Court, plaintiff recovered a judgment of $226, and costs against ITenry W. Ringleves administrator of the estate of John Buckingham, Jr., deceased. Upon this judgment the sheriff returned an execution, that after diligent search he could find no personal property out of which to satisfy the same. Thereupon the plaintiff, agreeably to the provisions of section 1918 of the Code, filed his petition in the same court setting forth the fact that there was real estate of the deceased within the State, which was duly described, and prayed the court to award execution against the same. John Buckinham, Sen. and his wife were the heirs, residing in Pennsylvania, upon whom personal service was made according to the terms of section 1718 of the Code.

At the hearing, the attorney for these heirs made first a special appearance, and moved the court to continue the cause for service, alleging that the personal service made in the case in the manner prescribed by section 1718 of the Code, did not give the court jurisdiction over the persons of nonresidents.

This motion was overruled by the court and exceptions taken. So far as this case is concerned it is unnecessary to determine whether such a service under the statutes of this State, was valid or not; for immediately after said motion was overruled, counsel for defendants, made an affidavit for a continuance of the cause, setting foiffh certain reasons therefor, thereby doing an act which brought his clients into court, and cured the defect in the service of which he complained. n

Judgment affirmed.  