
    BIGBEE v. HUTCHESON.
    1. Where a suit was brought in a justice’s court, which was dismissed, and -thereafter the justice of the peace erased the dates appearing in the original summons, and, substituting therefor other -dates, refiled such summons, thus making a new suit against the same defendant returnable to another term of the court; and where the defendant in such a case, being duly served with a copy of such summons, appeared, and, without exception to the summons or service, pleaded to the merits, such pleading was a waiver of any preceding irregularity, even if such proceeding upon the part of the justice could be deemed irregular; and more -especially is this true where no question was made by the defendant upon such action of the justice of the peace until after the case upon appeal by the defendant from a judgment rendered against him in the justice’-s court was pending in the -superior court.
    2. Where the defendant moved to dismiss the case pending on appeal, upon the ground that the summons which was the basis of the original case in the justice’s court was not an original, but an old summons reissued, -and the judge of the superior court dismissed the case appealed, he did not err in reeonsider- , ing the judgment of dismissal and in reinstating the case upon the motion of the plaintiff.
    May 11, 1896. Argued at the last term.
    Appeal. Before Judge Kimsey. Lumpkin superior court. April term, 1895.
    On December 5, 1892, suit on an account was br-ougbt to the January term, 1893, of a justice’s court-, which was held on January 6. Tbe defendant was duly served. "When tbe case came oA for trial, tbe plaintiff dismissed it, and on January Id, directed the justice to sue the defendant again on the same account. The justice took the original summons used in the dismissed case, and so altered the dates therein written as to make it bear date of January Id, and to be returnable on the 3d of March, 1893, that is to the March term. Defendant was served with a copy of the summons as so altered (the copy however not showing the alterations, and being apparently a copy of a new summons), and he appeared and pleaded. Judgment was rendered against him, and he appealed to the superior court. There he moved to dismiss the case for want of a valid summons on which to base it, and the motion was sustained. On the same day the plaintiff moved to reinstate the case, on the ground that defendant had submitted himself to the jurisdiction of the justice’s court, had filed a plea to the merits, and had not in that court objected to. the summons. No rule nisi was prayed and none granted on this motion, but defendant’s counsel acknowledged service and waived copy of the motion itself, without waiving rule nisi. He stated to the court that defendant would not appear on the motion. There was no evidence on the 'hearing of this motion; but the court, on hearing argument by plaintiff’s counsel, sustained the motion and reinstated the case. Defendant then filed a plea that, under the facts already stated. the summons attached to the account sued on was null and void. The issue made by this plea was submitted to the court without a jury. It appeared from the testimony of the justice, that he did not resign the summons on commencing the second suit, but adopted the signature already thereon; and that defendant made no objection to the summons in the justice’s court. Defendant testified that he supposed, until the trial in the superior court, that a new summons had been issued on the suit commenced in January. The court overruled the plea, holding that inasmuch as defendant had pleaded to the merits in the justice’s court, without raising any point upon the validity of tbe summons, it was too late to raise tbe question upon appeal; 'and that fbe summons as altered bad been adopted by tbe justice and made by bim a new original summons, and bad been so treated by bim and tbe parties. In addition to bis assignments of error on these rulings, and on tbe reinstatement of tbe case after it was dismissed, defendant contends that tbe justice bad no authority to make a summons returnable to tbe March term, which was issued in time to be made returnable to the February term; and that tbe summons was void for this reason. Also, that defendant was not properly -brought into court on the motion to reinstate.
    
      M. Cr. Boyd and S. H. Dean, for plaintiff in error.
    
      R. H. Baker and Price <& Charters, contra.
   Atkinson, Justice.

Aside from expressing our disapproval of tbe irregular practice pursued by tbe magistrate in tbe present case, we do not deem it necessary to submit any further discussion of tbe questions made in tbe case than that which is stated in the'head-notes preceding this opinion.

Judgment affirmed.  