Nichols v. Smith, 26 N.H. 298

Bell, J.

The general jurisdiction of the justice over the subject matter upon which this judgment is rendered and between any persons who may properly become parties to any such proceedings before him, is not questioned in this case. ' The judgment of a court having jurisdiction of the subject matter of an action and of the parties to it, is to be regarded as valid and conclusive between those parties, when it is brought in question in any collateral proceeding} that is, in any proceeding not specifically adapted to reverse or avoid it, and it is not liable to be impeached by plea or proof in any such proceeding until it has been regularly reversed or set aside on error or appeal, or other appropriate proceeding for this purpose.

Morse v. Presby, 5 Foster’s Rep. 299; Smith v. Knowlton, 11 N. H. Rep. 191; Wessen v. Chamberlain, 3 Comst. 331; Cook v. Darling, 18 Pick, 393; Pierson v. Catlin, 18 Vt. Rep. 77; Smith v. Keene, 26 Maine 411. Objections to the jurisdiction of courts fall under two classes} those which render the proceedings void, and those which render them merely voidable. Those which relate to the jurisdiction over the subject matter are generally of the class which render the proceedings merely void.

Thus, if a justice of the peace should assume jurisdiction over a bill in equity, or a court of probate should try a real action, or if a private individual should take upon him to try any action, except when acting as an arbitrator, their proceedings and judgments would be simply void. . But objections to the jurisdiction which relate merely to the persons of parties, to the proceedings by which they are brought into court, in general, only render the proceedings voidable, and not void.

The general principle is, that a party may waive a right, which the law has provided for his particular benefit, unusquisque renunciare potest jus pro se introductum. Carpenter v. Aldrich, 3 Met. 58. And it has always been holden, that a party may waive any exception which he might take because of any failure to comply with the law directing the mode by which parties are to be made defendants in legal proceedings.

Rules were made at a very early period requiring the party, who desired to take advantage of any defect in the proceedings by which he was brought into court, to make his exception by a plea in abatement, or a proper motion, at the earliest stage of the proceedings in court. And it was settled long since that if a party neglected to take his exception at that stage of the cause he was deemed to have waived it, and to have closed his own mouth against objecting afterwards. Simonds v. Parker, 1 Met. 508.

It is in conformity to this principle that it has been always held, that a plea of the general issue, or any plea in bar, is a waiver of all pleas in abatement, and of all motions to quash process for defects of form or substance. Ripley v. Warren, 2 Pick. 292; Carlisle v. Weston, 21 Pick. 535; Smith v. Whittier, 9 N. H. Rep. 464; Hanson v. Hoitt, 14 N. H. Rep. 456; Lovell v. Sabine, 15 N. H. Rep. 29; Smith v. Smith, 15 N. H. Rep. 55. And it is on the same ground that it is held, that nothing can be assigned for error which might have been pleaded in abatement. Merrill v. Coggill, 12 N. H. Rep. 97; 3 Bac. Ab.

Error K. 5; Nealley v. Moulton, 2 N. H. Rep. 488. It would seem too clear to be questioned, that if a waiver of such exceptions by pleading over, would preclude all questions in relation to them in a proceeding brought expressly to test their legality and sufficiency, it must be equally conclusive to shut out inquiry, when a judgment is assailed incidentally. Smith v. Whittier, 9 N. H. Rep. 564. In the present case, the only objection suggested is that the writ was not signed by the justice.

It is said, that the Revised Statutes chap. 182 §§ 4, 5, require that writs issued by justices of the peace shall be signed by them. This court have decided that writs signed by any other person than the justice himself, or by some person in his presence and by his direction, are invalid. Kidder v. Prescott, 4 Foster’s Rep. 263. And a justice cannot confer upon any one authority to sign writs or other process with his name, in his absence, so as to make the process valid.

Such writs are voidable as to all persons who choose to take exception in a proper time and manner, but they are not absolutely void so as to be incapable of confirmation. If the defendant waives the exception by pleading over, the objection is obviated forever. Many decisions are found which establish this principle in cases closely analogous to this. Thus it has been held, that want of legal form in a writ, 1 Met. 508; want of indorsement, 3 Met. 58; want of any legal service, 9 N. H.

Rep. 464; or service by a wrong officer, 21 Pick. 535; want of teste of the proper judge, 2 Pick. 592; want of the justice’s signature, 15 N. H. Rep. 55; want of the clerk’s signature, 15 N. H. Rep. 29; Pepoon v. Jenkins, Coleman 55; or of the seal, of the court; Foot v. Knowles, 4 Met. 391; though required by law, and in some of the cases by the constitution, and therefore fatal exceptions, if seasonably taken by plea or motion, are waived by pleading over in bar, and cannot be taken advantage of afterwards. The case of Smith v. Smith may be regarded as directly in point in this case, and upon this question.

When, a defendant, by waiving exceptions, has admitted himself rightly in court, it is thenceforth immaterial whether there was any writ, or what it was, or how it was served. By his appearance and plea he admits the jurisdiction of the court over him as a party. If the jurisdiction is admitted, the judgment cannot be questioned, except for want of jurisdiction of the subject matter. Judgment for the plaintiff.