
    Green J. Wooten vs. David R. Wingate, Administrator of Jourdan Morgan, deceased.
    It is error for the circuit court, after several pleas have been filed, two verdicts rendered, and new trials granted, on motion to set aside the service of the writ in the case, and give a final'judgment for the defendant.
    Where the bill of exceptions, taken by the plaintiff to an order of the court, setting aside the service of the writ, after pleas were filed rendering a final judgment for the defendant, recites that the order thus excepted to was made on the motion of the plaintiff, while the judgment of the court itself states that it was made on motion of the defendant, the high court of errors and appeals will adopt the construction, that the order was made on motion of the defendant, as the most sensible and" consistent with the whole record1.
    Where the record is itself contradictory in its parts, that construction must, if practicable, be adopted which will make it sensible and consistent, not one which is wholly\absurd, and will preclude relief.
    In error from the circuit court of Marion county; Hon. Thomas A. Willis, judge.
    Green J. Wooten, on the 2d day of September, 1841, filed his declaration in assumpsit against David R. Wingate, administrator, &c. of Jourdan Morgan, deceased; a writ of capias issued, and was returned with the following indorsement of service : “ Executed on the defendant, Wingate, by posting up a copy of the original, on the door at the house of his residence, September 16th, 1841.” The defendant appeared at the return term of the writ, and plead non assumpsit; afterwards the plaintiff’s declaration being amended by permission, the defendant plead the further plea of non assumpsit by his intestate; payment by his intestate, with an account of set-off, and payment by the administrator since Morgan’s death. Replications were filed and issues taken. At the October term, 1842, a mistrial took place, when a juror was withdrawn, and the cause retried at the same term, when the jury found a verdict in favor of the plaintiff for six thousand dollars. The defendant filed three bills of exception at this trial, and moved for a new trial: which was granted.
    At the April term, 1843, the cause was again tried, and the jury found for the plaintiff again for $6510 15. At this trial, eight bills of exception were sealed. A motion for a new trial was made, taken under advisement by the judge, and granted in vacation.
    In September, 1843, on the affidavit of Wingate, that he could not obtain an impartial trial in Marion county, the venue was changed to Covington county.
    At the November term, 1843, of that county, the plaintiff, on leave, filed an amended declaration; after stating which fact, the record recites as follows, viz.: “Thereupon, on motion of the said defendant, the service of the writ of capias ad respondendum in this case is set aside. It is therefore considered by the court, that said defendant go hence without day, and recover of the said plaintiff his costs by him about his defence in that behalf expended, for which execution may issue.” The bill of exceptions following this entry was in these words, viz:
    “ Be it remembered, that on the first day of the term aforesaid, the said plaintiff, by his attorney, moved the said court for leave to file an amended declaration in said cause, which motion was granted upon the payment of all the costs accrued in said cause, from the granting of the change of venue up to the present time; and thereupon, the counsel of the plaintiff made the following motion, to wit: ‘ Motion in this cause to set aside the return of the service of the capias, because the same is informal and contrary to law;; which motion the said court allowed, and the service of said writ was by said court set aside, to which opinion and judgment of the court, the plaintiff, by his counsel, excepts and prays that this his bill of exceptions may be signed, sealed, and made a part of the record in the case, which is accordingly done, Nov. 28, 1843.’
    Thcs. A. Willis.” [l. s.J
    The plaintiff prosecutes this writ of error.
    
      
      W. P. Harris, for plaintiff in error.
    The only point in this cause which the court can consider is the one presented in this bill of exceptions. The new trial granted after the first verdict waived all the exceptions upon the trial, and so also of*the second. That point is the propriety of the court sustaining this motion at the stage of the case it did. Twice had appellee appeared and plead; and upon a third trial, he was allowed to come forward and take exceptions to the process. This was manifest error, only needing to be stated to strike the mind of the court. The question is not as to the legality of the service of the writ; but the defendant had twice appeared and plead, and upon long-settled practice this was a complete waiver of every objection to the process, however defective. 4 How. 27, where O. J. Sharkey decides an appearance by a plea which is a nullity even, waives all defects of service of process. In fact, a writ is a mere notice to a party; and when a party appears either voluntarily or under this notice, and answers, the object of the law is obtained; its jurisdiction is fixed, and the party must abide the result upon the merits of the case alone.
    It may be contended that this bill of exceptions shows that the plaintiff made this motion to quash the writ. The court will not regard this objection; I, because the plaintiff could not move to quash his own writ, he could only ask leave to amend it; 2, because it is evidently a simple clerical mistake in drawing the bill of exceptions; 3, because the motion itself, and the judgment thereon, show it to have been the motion of defendant ; 4, because the bill of exceptions shows affirmatively, that the plaintiff excepts to the opinion sustaining the motion, which would be absurd had it been his own motion.
    
      Montgomery and Boyd, for defendant in error.
    This is a singular case, and very difficult to understand. Notwithstanding the long record, we conceive there can be but one point raised, and that is as to the regularity of the dismissal of the suit, or the judgment in favor of the defendant.
    It is not an easy matter to understand the records of many of our courts, but of all we have had the misfortune to examine, this is the most difficult to understand. It is not necessary to go further back than the last bill of exceptions, which evidently was intended to contain something more, but what that something might happen to be, we are at a loss to discover.
    The recitals of the bill of exceptions that the plaintiff moved to set aside, the return on the capias might be regarded as a clerical error, if it were not for the equally ridiculous recital that the plaintiff had asked for, and obtained leave to amend his declaration. And can you tell with certainty whether that act of the court is not also excepted to 1
    
    The judgment is merely informal, not erroneous ; the defendant should have moved for a nonsuit, unless the plaintiff moved for an alias capias. The defendant was not bound to appear to a new declaration in the cause, and an alias could not issue because the case had been removed from the county of defendant’s residence. All these blunders having been committed by the plaintiff, he ought to be ashamed to ask this court to rectify them. But we apprehend no case can be found, in which a court has interposed to correct errors at the instance of the party who caused them. The plaintiff should have employed counsel learned in the law, as specified in the constitution.
   Mr. Justice Clayton

delivered the opinion of the court.

There is but a single point for decision in this cause. After several pleas had been filed, and after two verdicts and new trials, the court upon motion set aside the service of the writ in the case, and gave a final judgment for the defendant. This was palpably erroneous. It. is said here, however, that the error cannot be corrected in this court, because from the bill of exceptions, it appears that the order was made at the instance of the plaintiff himself. The bill of exceptions does so state the fact; but the judgment of the court states that it was done on motion of the defendant.

Where the record is itself contradictory in its parts, we must, for the furtherance of justice, adopt that construction if practicable, which will make it sensible and consistent; not one which is wholly absurd, and which would preclude relief. It is difficult to believe, that the plaintiff in one instant moved to have himself turned out of court, and in the next excepted to the action of the court in doing it. If he desired to go out, the door was always open for a nonsuit.

The judgment will therefore be reversed, and the cause remanded for farther proceedings.  