#### W. R. LANEY v. HUTTON AND BOURBONNAIS.

(Filed 2 December, 1908).

1. Justice’s Court — Summons—Service on Non-Resident of County —Appearance—Waiver.

By entering a general appearance and demurring, a non-resident defendant of tbe county waives or cures tbe defect, in proceedings against bim in a Justice’s court, for want of service of summons ten days preceding tbe trial, as prescribed by Eevisal, sec. 1451.

2. Judgments — Justice’s Court — Summons — Service—Irregularity —Voidable.

A judgment against a non-resident defendant of tbe county, obtained in a Justice’s court without having bad tbe ten days’ previous service of tbe summons, as required by Eevisal, sec. 1451, is not void but irregular, or, at most, voidable.

*2653. Pleadings — Joinder of Actions — Demurrer—Misjoinder—Defense by Answer.

When it appears, both by the summons and Justice’s return, in an action brought in his court, that the plaintiff alleged a • joint demand against the several defendants, a demurrer of defendants in the Superior Court for misjoinder of separate actions will not be sustained, as the allegations of the complaint must be taken as true, and such defense should be by way of answer. Revisal, sec. 477.

4. Evidence — Declarations—Objections and Exceptions — -'Appeal and Error.

Declarations made by a party and testified to on the direct examination by a witness, not objected to at the time, and gone fully into on cross-examination, cannot be considered on appeal.

5. Evidence — Nonsuit.

“When there is some evidence that defendant had acknowledged his liability for a debt sued on, a motion for judgment as of non-suit upon the evidence should be disallowed.

Civil aotioN tried before Ferguson, J., and a jury, June Term, 1908, of Caldwell. Defendants appeal.

M. N. Uarshaw for plaintiff.

Marie Squires and E. B. Cline for defendants.

Walked., J.

This action ivas brought before a Justice to recover an indebtedness by the defendants to the plaintiffs for work and labor performed at.their request.

The summons -was issued 16 January, 1907, to Caldwell County for Will Wilkerson, who resided therein, and to Catawba County for Hutton and Bourbonnais, returnable 1 February, 1907. It .was served on Hutton and Bourbon-nais 28 January, 1907. They did not appear, and the,Justice gave judgment for the plaintiffs-on 1 February, 1907. Defendants afterwards appealed to the Superior Court. The defendants, Hutton and Bourbonnais, alone appealed to this Court. The jury returned a verdict for the plaintiffs, and judgment was entered thereon.

In the. Superior Court, the defendants demurred for mis-joinder of causes of action as each plaintiff had a separate *266cause of action. The defendants ITutton and Bourbonnais contended here that the action should be dismissed, as the Justice entered judgment when the summons had not been served ten days before the day on which it was returnable, contrary to Eevisal, sec. 1451. The irregularity in this respect was.waived, as the defendants did not apjoear before the .Justice and ask for further time to plead, nor did they move before him to set aside the judgment, nor did they move in the Superior Court to dismiss, if that •tfould have been a proper motion, but they entered a general appearance and demurred and, besides, have had full opportunity to plead to the merits and have the issues tried by a jury. The defect in the Justice’s proceedings was thereby waived or cured. Roberts v. Allman, 92 N. C., 391; Wheeler v. Cobb, 75 N. C., 21. Section 1451 of the Eevisal was evidently intended to afford the defendants a reasonable opportunity to appear and plead. The judgment was ndt void but irregular, or, at most, voidable. Guion v. Melvin, 69 N. C., 242; Strayhorn v. Blalock, 92 N. C., 293.

The demurrer for misjoinder was properly overruled, as it appears from the summons and Justice’s return that the plaintiffs alleged that the debt was due to the plaintiffs jointly and not severally. If this was not true, the objection should have been taken by answer, for in passing upon the defendants’ demurrer, Ave can consider only the allegations of the complaint. Eevisal, sec. 477.

With regard to the declarations of Wilkerson, it may be said that the plaintiff, W. E. Laney, testified, without objection, that Hutton had told him that Wilkerson was working for' Hutton and Bourbonnais and, on cross-examination by the defendants, he further testified as fully in regard to -the matter and to the same effect.

The motion to nonsuit upon the evidence Avas properly overruled, as there was sufficient eAÚdence to establish the *267plaintiff’s claim. AY. E. Laney testified that Iiutton told . him tlie debt was due and would be paid.

AATe have examined the numerous exceptions and find no error in the rulings of the Court. The exceptions not mentioned by us require no special discussion.

No error.