
    CASE 13 — MOTION
    JUNE 8.
    Commonwealth vs. Marks.
    APPEAL EBOM JEFEERSON CIRCUIT COURT.
    The appearance of the parties to a motion, and their agreement to set the hearing of it for a specified day, and a trial and judgment on the merits, is a waiver of previous irregularities.
    Jno. M. Harlan, Attorney General, for the Commonwealth,
    cited Grim. Code, sec. 88.
   JUDGE PETEBS

delivered the opinion of the court:

We cannot say that the court below, on the appearance of appellee, abused a sound discretion in discharging the forfeiture of the recognizance in the first place.

The record of the subsequent proceedings, after the first judgment, discharging the forfeiture, is irregular, and, upon the motion to set aside the last judgment and quash the execution which issued upon it, not harmonious; but on the 4th of September, 1865, it states that the parties came by their attorneys, and, by consent and agreement, the motion pending herein to set aside the judgment and quash execution No. 10,443 be assigned to the 9th inst. for hearing.

The parties therefore recognized the motion as pending at that time, agreed upon a day of trial, and then went into the trial on the merits without any objection whatever, and we must regard all irregularities which had previously occurred, as waived.

Wherefore, the judgment is affirmed.  