It was held by us in Lighter v. Haskins, (Nov. Gen. Term, 1851,) that an appearance by the defendant before the justice, and pleading to the merits, waived all defects in the form of the summons, and all irregularities therein, or in the service thereof.
Although the summons may he such, or may be so served that, by virtue thereof the court below acquires no jurisdiction of the cause, (2 Rev. Stat. 3d ed. p. 311, § 33, of the act to abolish imprisonment for debt, &c.,) it by no means *617follows, that having jurisdiction of the subject matter, the justice may not proceed in the action if he acquire jurisdiction of the person in a/n/y mode.
The particular section of the statute relied upon here by the appellant, does not at all repeal the well settled rule, that a voluntary appearance, even without process, gives jurisdiction of the person, and that a plea in bar is a waiver of defects, which are properly only pleadable in abatement.
It may, therefore, for the purposes of this case, be conceded, that by virtue of the summons issued, or the service thereof, the justice acquired no jurisdiction of the cause, nor of the person of the defendant. And yet the defendant appeared, submitted to his jurisdiction without objection, and pleaded to the merits. This was enough. The defendant is in no worse condition than if he had appeared without process ; and indeed he may, for the purposes of the case, be regarded as having done so.
We have repeatedly held to this view since the decision in Lighter v. Haskins was made.
It is true, that after issue joined, the defendant below “ moved to dismiss the suit,” on the ground that the defendant being a non-resident, could only be proceeded against by a short summons. And the justice granted the motion, or gave judgment of dismissal upon this ground.
As a mere motion in the cause, it was too late. The defendant by a general appearance, and pleading to the merits, had waived the objection, and so the justice should have decided.
If what the justice in his return calls a motion can, by any liberal view of the informal proceedings in the justices’ courts, be regarded as in the nature of a plea to the jurisdiction, then it should have been disregarded by the justice, for there cannot be a plea in abatement and a plea to the merits on the record undisposed of at the same time; the latter waives the former. And so we held in a recent case since Lighter v. Haskins was decided. (Monteith v. Cash, Sept. Gen. Term, 1852.) (a)
*618The cases cited in the first named decision support these views: and see, also, Seymour v. Judd, 2 Comst. 468 ; 2 Hill, 140, 6 ib. 622.
The judgment must be reversed.
Ante, p. 412.