
    Basil Bailey v. Milton Lykins.
    Waiver by Appearance.
    A defendant in a suit for forcible detainer, who bas appeared and defended in the justice court, cannot in the circuit court take advantage for want of proper service of the writ.
    APPEAL PROM LEWIS CIRCUIT COURT.
    November 5, 1874.
   Opinion by

Judge Lindsay:

It is not necessary to decide whether or not a constable has the right to execute a warrant for forcible detainer.

In this case the appellee appeared at the trial in the county, and made defense. He cannot, therefore, take advantage in the circuit court, upon the traverse, for want of proper service of the writ. Philips v. Harmon, et al., 1 Dana 468; Williamson v. Boucher, 7 J. J. Marsh. 252. The judgment of the justice or of the circuit court may still be carried out by the sheriff, and the rights of the appellee could not have been prejudiced by the summoning of the jury, or the service of the writ by the constable. The judgment of the circuit court quashing the warrant and the service thereof is reversed, and the cause remanded for a trial of the issue raised by the traverse.

George M. Thomas, for appellant.  