
    
      Poling v. Johnson.
    August, 1843,
    Lewisburg.
    (Absent Cábele, P., and Brooke, J.)
    Chancery Practice — Pleading — Hearing of Causes— When Premature Statute — Effect.—In a suit in chancery, when an answer is filed at rules in due time, four months from the time of the replication to the answer are allowed the parties for taking tbeir depositions, by the act of February 17, 1823, in Sess. Acts of 1822-3, p. 39, ch. 37, § 1; Suppl. to Rev. Code, p. 129. And until the expiration of the said four months, neither party has the right (without the consent of the other) to set the cause for hearing.
    
      S ame — Same ~ Same — Same. — It appearing "by the record of a suit in chancery, that the answer and replication were hied at August rules 1840; that at September rules 1840 the plaintiff set the cause for hearing; and that on the 5th ,of October 1840 the cause was heard upon the bill, answer, replication, depositions, exhibits, and arguments of counsel, and a decree made against the defendant, heijD, the cause was prematurely setfor hearing, and prematurely heard. The decree was therefore reversed with costs, and the cause remanded, with directions to the court below to send the case to rules, there to remain for two months before it shall be set for hearing at the instance of either party, (unless it be set for hearing before the lapse of the two months by the consent of parties,) and for such decree in the case after it shall be set for hearing, as may be proper. Accord. Dalby v. Price, 2 Wash. 191.
    This was a suit in chancery in the circuit court of Randolph county, by Garrett Johnson against Henry Poling. The subpoena was issued the 2d of December 1839, returnable to the first monday in January following, and was returned ! ‘executed by delivering a copy to the defendant.” The bill was filed at May rules 1840. At August rules 1840, the defendant appeared and filed his answer, to which the plaintiff replied generally. At September rules 1840 (according to the record) the plaintiff came by his attorney and set the cause for hearing.
    And on the 5th of October 1840 256 *a decree was made against the defendant. It commenced as follows: “This cause came on this day to be heard upon the bill, answer, replication, depositions and exhibits, and arguments of counsel.” The depositions were on both sides.
    On the petition of the defendant Poling, an appeal was allowed from the decree. The petition assigned several errors, but only one need be mentioned; to wit, that the cause was prematurely set for hearing, and prematurely heard and decided, the same having been set for hearing on the first rule day after the answer filed and replication thereto, and having been decided by the court in the following month; all wh ch was without the consent and against the will of the defendant.
    George H. Lee for appellant.
    The subpoena having been returned executed, the bill ought to have been filed at the return day; and this not having been done, the suit ought regularly to have been dismissed under the act of assembly. The circumstance of the defendant having answered may preclude him from now requiring the suit to be dismissed; but it does not prevent him from making the objection that the suit was set for hearing in less than four months after the answer was filed. The rule formerly was, that upon an answer and replication filed, six months from the time of the replication were allowed the parties for taking their depositions; and the cause could not then be set for hearing, nor heard and determined, before the expiration of the six months, without the consent of the parties entered of record. Dalby v. Price, 2 Wash. 191. The period has since been reduced to four months. Sess. Acts of 1822-3, p. 39, ch. 37, ij 1; Suppl. to Rev. Code p. 129. But the case of Dalby v. Price still applies, when a cause is set for hearing (and then heard and determined) before the expiration of the time prescribed by the statute now in force.
    257
    *Price for appellee.
    If, at the time of the hearing, the defendant had any objection to the cause being heard, he ought to have made it then. It may fairly be inferred that the hearing was by consent. The entry that the cause was heard upon the arguments of counsel authorizes this inference. Dalby v. Price was decided before the act of February 27, 1828, which declares that no decree shall be reversed for informality in the proceedings, where the parties have proceeded to take their depositions, and it appears to the court that there has been a full and fair hearing upon the merits, and that substantial justice has been done between the parties. Sess. Acts of 1827-8, p. 20, ch. 25, § 1; Suppl. to Rev. Code, p. 125. Here, both parties proceeded to take depositions, and substantial justice has been done. The objection must be deemed invalid, if any regard be had to what would be the rule at law under like circumstances. If a declaration be filed in term, a plea then put in, issue joined and trial had, a defendant would not be permitted to object in an appellate court that the cause had been prematurely tried.
    Lee in reply.
    The court cannot infer from the entry of the decree, that the arguments of counsel there mentioned were of the counsel on both sides. And if it could so infer, still this is not tantamount to an entry upon the record, that the defendant consented to the cause being heard; which it is held in Dalby v. Price ought to appear, to constitute a waiver of the objection. The act of 1828 cannot cure this error. 1. The parties must have proceeded to take their depositions; they must have taken all their depositions; which cannot be intended here, where the time has not elapsed which is allowed for the purpose. 2. When the party has not had the time intended for him to take his depositions, the court cannot say that there has been a full and fair hearing; and unless there has been a full and fair hearing, 258 *it is impossible to say that substantial justice has been done.
    
      
      Appellate Practice — Notice of Suit — Waiver.—By appearing to the action, and going to trial on the merits, the defendant dispenses with a formal service of process and waives any objection to the alleged irregularity, and cannot raise the objection for the first time in the appellate court. Pulliam v. Aler, 15 Gratt. 62, citing Cunningham v. Mitchell, 4 Rand. 189; Poling v. Johnson, 2 Sob. 255. See also, citing the principal case for the proposition, footnote to Muire v. Falconer, 10 Gratt. 12; Ballard v. Whitlock, 18 Gratt. 242; Hall v. Bank of Virginia, 14 W. Va. 612. The principal case is also cited in Bartlett v. Bartlett. 37 W. Va. 239, 16. S. E. Rep. 452; Raney v. Heath, 2 P. & H. 215. 216.
    
   STANARD, J.,

delivered the following as the resolution of the court:

The court is of opinion that the case was prematurely set for hearing, that being done at rules at- the instance of the plaintiff, one month after the answer and replication thereto; and as it does not distinctly appear that at the hearing of the case, the defendant, in person or by counsel, appeared and was heard, the court below ought not to have proceeded to hear the case and render a decree therein. Had the record distinctly shewn that the defendant appeared at the hearing, in person or by counsel, the court might properly imply, that as no objection appears in the record to have been taken to the said irregularity at rules, the objection thereto was waived, and the cause heard by consent, though such consent was not expressly stated on the record. For the irregularity aforesaid, the court is of opinion that the decree is erroneous. Therefore the said decree is reversed with costs. And the cause is remanded, with directions to the court below to send the case to rules, there to remain for two months before it shall be set for hearing at the instance of either party, (unless it be set for hearing before the lapse of the two months by the consent of parties,) and for such decree in the case after it shall be set for hearing, as may be proper.  