#### H. T. CLAWSON v. W. O. WOLFE.

Practice — Misnmner—Amendment of Process — Waiver of Irregularity^

1. A defect in the name of a defendant in the summons is cured by a - judgment by default rendered against him, under the provisions of Kev. Code, ch. 3, § 5. •

2. Wheie such judgment is taken before a Justice of the Peace and carried by appeal to the Superior Court, it is the duty of the Court to make the proper amendment and proceed with the trial upon themerits-

3. Where the defendant in such case took an appeal from the Justice and failed for seven terms to make any motion to dismiss, he thereby waived the irregularity complained of.

(Gibbs v. Fuller, 06 N. C. 116, cited and approved.)

Appeal from a Justice’s Court tried at January Special Term, 1877, of-Wake Superior Court, before Schenck, J.

The title of the action in the Justice’s Court was, “ II. T. Clawson v. W. 0. Wolfe and J. W. Watson,” and on the face of the summons was, “yon are hereby commanded to summon J. O. Wolfe, &c.” When the case was called for trial (the first time after it was docketed) the defendant moved upon the face of the papers to set aside the judgment rendered by the J ustiee of the Peace against him and to dismiss the action, for the reason that it appeared affirmatively' that no summons issued to or was served on W. 0. Wolfe,, the defendant, and that the return of -the Constable was defective.

The plaintiff resisted the motion and offered to prove by the Constable that it was served on this defendant, and asked that the return be amended; and further, that the" defendant had waived all irregularity in the proceeding by giving the Justice notice of appeal, after judgment upon the alleged defective summons had been rendered and exécution issued thereon. His Honor being of opinion with the d&~ *101fendant, gave judgment accordingly and the plaintiff appealed.

Messrs. E. G. Haywood, and Geo. H. Snow, for plaintiff.

Messrs. Busbee ¿p Busbee, for defendant.

ByNüm, J.

There is error. It is provided in the Rev. •Code, ch. 3, §§ 5-6, that where a judgment shall have been -reudered in any case upon default, nil (licit, &e., it shall not be reversed, impaired or in any mauner affected, for any defects in the process or pleadings, to wit; for an}*- mistake in the name of any party or person, &c., where the correct name ■shall have been once rightly alleged in any part of the pleadings or proceedings. And that such omissions, defects and variances, not being against the right and justice of the matter of the suit, and not altering the issue between the parties on the trial, shall be supplied !and amended by the Court where the judgment shall be given, or by the Court 'in which the judgment shall be removed by appeal. This statute covers this case. The name of the defendant was correctly set forth in the title of the summons and in the ■declaration which was upon a note signed by"the defendant ■and which he does not deny. The only defect is contained in the body of the summons where he is named J. 0. Wolfe, when it should have been W. 0. Wolfe. We think it sufficiently appears, without the aid of the proposed affidavit, that W. 0. Wolfe -was actually served with process and was not in the slightest degree misled. The officer returns upon the process that it was “served” and the defendant does not •deny that it was served upon him, but we think by fair inference admits it, when in his notice of appeal and as one <of the grounds of it, he says “that judgment was rendered without any service of proper summons upon the defendant W. 0. Wolfe. ” If no summons.had been served upon him *102it was incorrect to insert the word “ proper ” which having been inserted, must have its proper effect.

The title of the summons was against the defendant b,y his proper name, the declaration of the cause of action was-against him by his proper name, the judgment also correctly set forth • his name, and finally the summons was served upon him, containing such a description of the cause of action that he could not have been reasonably misled by what' he must have known was a clerical mistake as to á single" letter. It was therefore the duty of the Court under the-provisions of the Rev. Code, before cited, and C. C. P. §§ 128, 135, to make the amendment and proceed with the trial. Gibbs v. Fuller, 66 N. C. 116. We place our decision upon ther proper construction of our statutes and therefore we do not consider the English authorities cited by the defendant’s-counsel as applicable.

We are also of opinion that W. 0. Wolfe having admitted-himself to be the defendant by .praying an appeal and defending the action for seven terms of the Court, without having specified the grounds of his motion to set aside the judgment and dismiss the action, or moved in the matteiy thereby waived the irregularity complained of.

Per Curiam. Venire de novo.-