
    LAMANTIA v. UNITED STATES et al.
    (Circuit Court of Appeals, Fifth Circuit.
    April 4, 1925.)
    No. 4497.
    Appearance ©=>24(5) — Defendant, who excepted to libel for failure to state cause of action, waived defect in service of process.
    Defendant, who appeared in case and excepted, to the libel on ground that it failed to state cause of action, waived any defect in service of process on him by appearing and invoking the court’s decision as to the merits of the claim asserted in the libel.
    Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Poster, Judge.
    Action by the United States against Anthony Lamantia and others. Judgment for the United States, and defendant Lamantia appeals.
    Affirmed.
    
      John E. Jackson and Stanford E. Owen, both of New Orleans, La., for appellant.
    Louis H. Burns, U. S. Atty., and Edwin H. Qrace, Asst. U. S. Atty., both of New Orleans, La., for appellees.
    Before WALKER and BRYAN, Circuit Judges, and BARRETT, District Judge.
   PER CURIAM.

This is an appeal from a judgment against the principal and sureties ón a bond given to procure the release of a motorboat which was seized, and against which forfeiture proceedings were instituted. The appeal was taken by one of the sureties, who complains of the judgment on the sole ground that there was no valid service of the citation to him in the proceeding. The appellant, without raising any question as to the service of process upon him, appeared in the cause and excepted to the libel therein on the ground that it sets forth no cause of action. By appearing and invoking the court’s decision as to the merits of the claim asserted in the libel, the appellant waived any defect in the service of process upon him. St. Louis & San Francisco Railway Co. v. McBride, 141 U. S. 127, 11 S. Ct. 982, 35 L. Ed. 659; Pease v. Rathbun-Jones Engineering Co., 228 F. 273, 142 C. C. A. 565.

The judgment is affirmed.  