Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-06-23

failed to object to it, but he has from the
beginning treated it as a good pleading
and only objected to it in argument tC
protect himself against his own error.
How ever, his action completely refutes
his objection to the imperfection of the
notice. He shows that she notice calls
him into court in term time; he exhibits
the copy OF the summons requiring him
to come in on the first day. The ques-
ton then becomes pertinent, was he
mlslead by all this? Now, if he was, then
he knew that he did not have to answer
before the first day OF the February term.
Did he? His answer was filed upon the
10th day OF January, 1891, just within
the twenty days. If ne was mislead by
the law and the notice, why this effort to
get in Just in time under the real law
1t seems to me that it is very evident that
he was not mislead, but that he was en-
deavoring to follow the law, but through
negligence failed. There is but one other
point to be considered. Did the contes-
tant waive his right to-, urge his motion
by replying and taking testimony The
respondent says he does-just as party
valves the error in pleading over after an
overruling of demurrer. But the
learned counsel fails to argue his point.
or cite one case to substantate his posi-
ton. 1t must be remembered that this
is matter Of jurisdiction; while the de.
murrer usually recognizes, and the nature
OF the case must, the jurisdiction of both
subject matter and parties. Pleading
over, where pleading is simply defec-
tive, simply supplies the defect by
lntendment, but filing'a pleading and GO
ing to trial after objecting to a jurisdic-
tional question, does not necessarily give
jurisdiction it may as to parties, never as
to subject matter. But not as to parties,
when the following action is taken under
protest. The contestant in his reply says
Expressly reserving the right upon the
first hearing of this cause to raise the
question of the failure to so serve said an
swer, and to move for judgment against
respondent for failure in pleading and
protesting that he ls not bound in law to
reply unto said pretended answer"
The principle seems settled in Hark-
ness v. Hyde 9S U. S. 47G. The court
says: "llIegality in proceeding by
which jurisdiction is to be obtained is in
no case waived by the appearance of the
uoiohuaht ioi the purpose OF calling the
attention of the court to such irregularity
nor is the objection waived when being
urged it is overruled, and the defendant is
thereby compelled to answer. He is not
considered as abandoning his objection
because he does not submit to further
proceedings without contestation. 1t ia
only when he pleads to the merits in the
first instance, without insisting upon the
illegality that the objection is deemed to
be waived" 1t seems to me that in view
of these authorities | can only find one
way, and that against the respondent. | |
have investigated to some extent, after
thoroughly considering the point Just past
upon the merits of this case, and while
my findings as to them are now of no i'm.
portance, and possibly might be changed
by more thorough investigation, vet I
have found that the vote was tie. II ia
my judgment that the evidence and the
answer, together with the
contestants reply be struck from the
files; and that the contestant have iudp-
ment for possession Of the Office upon his
no''ce' Associate Justice, sii etc.