#### Waterhouse vs. Freeman and another.

A party cannot complain of an order which is in his favor.

Where a change of attorneys is made during the progress of a suit, notice of the change must be served on the opposite attorney; and until such notice is given to him, he is not bound to take notice of any proceeding in the suit, in the name of any other -than the attorney of record.

An order of arrest is a provisional remedy of an ancillary character, and if improperly issued in an action upon a contract, may he vacated on motion; but the court is not deprived thereby of its jurisdiction to proceed in the action.

An objection for a variance between the summons and complaint, is waived by the defendant’s appearing and demurring to the complaint.

APPEAL from the Circuit Court for *Winnebago*County.

This was an action to recover moneys which it was alleged that the defendants had collected as attorneys at law of the plaintiff, and had refused to pay over on demand. The summons was dated October 15, 1859, and was in the usual form, but concluded thus: “ in this action the plaintiff will apply to the court for the relief demanded in the complaint.” The complaint was attached to the summons, and demanded judgment for the sum claimed to be due. There was an affidavit attached to the complaint for the purpose of procuring the arrest of the defendants, and an order of arrest was issued by a court commissioner, and the defendants arrested. They appeared by their attorneys and filed a demurrer to the complaint. The demurrer was sustained, and the plaintiff filed an amended complaint. The defendants served upon the plaintiff’s attorneys a demurrer to the amended complaint, signed by different attorneys from those who had previously appeared for the defendants. The plaintiff’s attorneys returned the demurrer, on the ground that the attorneys who signed it “had no right to appear in the action.” The attorneys who signed the demurrer gave notice at the time of serving it, of their retainer for the defendants, but there had been no notice of their formal substitution in place of the attorneys who had previously appeared. Before the commencement of the next term, the plaintiff’s attorneys gave notice to the defendants that they would apply to the court for the relief demanded in the complaint. Upon the hearing of the application the court denied it, and ordered *340that the defendants be allowed to appear by attorney and file their demurrer, on payment of ten dollars costs, which they did, and the demurrer was overruled, with leave to the defendants to answer on payment of costs. Afterwards, at the same term, the defendants served on the plaintiff an order to show cause why the action should not be dismissed, for the reason, among other things, that the court had no jurisdiction by the process in the cause, of the subject matter of the suit, the process being an order of arrest issued in an action for money collected by defendants as attorneys for the plaintiff, and the subject matter of the suit being a contract and not a tort. The court, on a hearing, refused to dismiss the action. From all the rulings against them in the cause, the defendants appealed.

January 8.

*Pilce &*Tyler, for appellants.

*Wlieehr*& Ooolhaugh, for respondent.

*By the*Court,

PAINE, *J.*

The order denying the jfiaintiff’s motion for judgment, and allowing the defendants to file their demurrer on the payment of ten dollars costs, from which the defendants have appealed, must be affirmed. The only reason urged for reversing it is, that the notice of the motion for judgment given by the plaintiff, did not authorize such a judgment as he asked for. But concede it, and the answer is, that the court denied him such a judgment, or any judgment at all. The balance of the order is in the defendants’ favor. The demurrer last served, by counsel who were not attorneys of record, was properly returned by the plaintiff’s attorney. He was not bound to recognize them as having anything to do with the case, until they were regularly substituted for the attorneys of record. It was therefore a matter of discretion with the court, after the time for answering the amended complaint had expired, to determine upon what 'terms the defendants might plead. There is therefore nothing in this order of which they can complain.

Neither is the position well taken, that because an order of arrest may have been improperly issued in an action on a contract, the court had therefore no jurisdiction. The order of arrest is not the process by which the suit is commenced, *341but is a provisional remedy of an. ancillary character. If improperly issued, it may be recalled on motion, but it not deprive the court of jurisdiction to proceed in the action.

All objection to the variance between the summons and complaint, if such there was, was waived by the appearance of the defendants and their demurring to the complaint.

The orders appealed from are affirmed, with costs.