
    Payne v. Collier. Payne v. Collier & Pettus.
    I. The judgment of the circuit court will not be reversed;on account of a mere irregularity, by which, the party complaining, has sustained no injury.
    
      2 It is a sufficient compliance with the 8th sect, of the-act regulating' “Practice at’law,” (R. C. 1836, p. 451,) if. the original writ re quires the def’t. to appear before the “judge- of the circuit court,' - <Sfc. to answer the “demand,” &c., instead of, to appear before the “circuit court,” &c., to answer the “complaint” &c,.
    
      Mullcmphy for-Plaintiff in- error.
    
    The- first error assigned is- general.
    • The second erroir assigned is the circuit court’s giving-judgment, as by default, for. want of a plea, whilst a motion, to quash writ was pending and undetermined, need not be-farther noticed than, by saying, that altho’ the circuit court does not consider a motion, as equivalent to a plea for the-purpose of staying proceedings until such motion be decided,, it is presumable that such doctrine will, scarcely be affirmed,, or deemed a matter- of doubtful disposition-.
    The third error assigned is the overruling motion to-quash writ. This depends upon the sufficiency of the. writ.. That sufficiency will be determined by a comparison- of the-writ with the requirements of the sec. 8, art.. 1, Practice, at Jaw, statutes of Missouri, page 45], which ordains that “the “original writ, in all cases where it is not otherwise pr.ovi-“ded by law, shall command the officer to summons the- defendant to appear in court on the return day of the writ, “and at a place to be specified in such writ, to answer the-“complaint of the plaintiff.” The words of the law are absolute and imperative. No discretion is left to the* officer to- change the command of the writ. In this case the writ does not command the plaintiff to appear in court, but to appear before the Judge of the circuit court; (non constat but what it might be at chambers;). The writ eoutinues, “to-answer unto George Collier of his demand" not to answer the complaint of the plaintiff". Independently of the above objections, the petition is addressed to the St. Louis circuity and not to any court at alL Could any writ issue upo-n such a petition?
    
      Tho judg c!rcuit°feourt will not l e reversed on account of a iarityU'bySU" which, the ■JaiAn'cc^has Kustainod no J J
    
    
      Spalding and Tiffany for Defft in error.
    
    The only point in the case, so far as I know, is, whether the court erred in refusing to quash the writ. Rev. Code p. ^9, also page 451 section 8. 3 Mo. Rep. 38. 2 do. 211. 4 do. 438.
   Opinion of the Court delivered by

M'&irk Judge.

The above cases are alike m every particular, except in the last case Collier and Pettus were joint plaintiffs, and in the first case Collier alone was the plaintiff. One opinion will dispose of both cases.

Collier brought his action under the petition and summons statute. The statute gives a defendant the three first days of the term to appear and file his plea. Before the ■ three days expired, the defendant, Payne, appeared and made a motion to quash the plaintiffs writ for the following reasons, to wit: 1st. The writ does not require the defendant to answer any action known to the law. 2nd. Same in substance as the first. 3rd. The same. 4th. The writ is not such as the law contemplates. 5th. The writ is informal, &c.

This motion was filed but no farther notice was taken of it till after the two days for pleading had expired. When ihe time for pleading had expired the plaintiff took judgment by default for want of a plea, without taking any notice of the motion, after the judgment by default was rendered, the defendants motion to quash came on to be heard and was over ruled.

It is assigned for error, that the court gave judgment by default against the defendant while he was by law in court and wlffle his motion to quash was pending. As to this mat- . . . ; . , ter oí error, my opinion is, that the judgment by default, at rnost>was onty an irregularity. That a mere irregularity is not the subject of error, has been often declared by this court, particularly it has been so decided in the case of Holmes and Elliott vs. Carr et al.

It has been assigned for error that the writ was not quashed on the defendants motion. I will not now enquire into the question what would have been the effect of quashing this writ, after judgment by default, inasmuch as I am of opinion that the defect here complained of, was a proper case for a demurrer to the writ, or petition, rather than a motion to quash. The writ requires the defendant to ap.pear before the judge of the circuit court, at the next term, to be holden &c., to answer the plaintiffs demand, instead of saying to answer his, the plaintiffs, complaint, as the statute says. Demand and com] lain! are, for all useful purposes, about of the same import. The words used, instead of those given by the statute, could not in any way injure pr mislead the defendant; and as he was not deceived, misled nor injured, my opinion is, the court did right in refusing to quash the writ on that account.

anee with the ||“g ^ (R.c. 1835,V rigmaf-writ0*' requires the pe-Jbefore" “judge. court,” &c., demand #c-; instead of' to BPP0ar before the “circuit ceurt” §e., to answer the “complaint”

The writ requires the party to appear before the judge ,of the circuit court, at the next term, to be holden at St. Louis on a certain day. It is supposed a .command to pear before the judge of the circuit court.in term time, at the place, and at the time of holding court, is no command to appear at the court. I do not so understand it. .In this case there was no possible chance for the defendant to be deceived or misled about the matter. He has not been deprived of any legal advantage, and therefore his writ ought not to have been quashed. My opinion then is that there Is no error in the record. The judgments in both cases are affirmed.  