If the validity of the judgment sought to be reversed were properly before the court on this writ of error, we are very doubtful whether it could be supported. But a preliminary question arises whether the writ of error is rightly brought.
It has been held, in a series of cases, so as to become a rule established by authority, that where the alleged erroneous judgment of a lower court was open to an appeal, and where the plaintiff in error was in such a condition, that without loches he *374could avail himself of his right to appeal and did not do it, he cannot have a writ of error. Savage v. Gulliver, 4 Mass. 178. Jarvis v. Blanchard, 6 Mass. 4. Champion v. Brooks, 9 Mass. 228.
The reasons on which the rule is founded are, that the remedy by appeal is more simple, more prompt, less expensive and circuitous ; and if the supposed error is of such a nature that it can be corrected by amendment, a writ of error would be wholly unnecessary. Indeed it is now settled (Rev. Sts. c. 100, § 24) that no judgment shall be reversed for any defect in matter of form, which might by law have been amended.
The rule, that he who has a right to appeal shall not bring error, applies of course to cases only where the party had an opportunity to appeal. If he never appeared, or was never duly summoned, and judgment was rendered against him by default, the case would be very different. Gay v. Richardson, 18 Pick. 417. Arnold v. Tourtellot, 13 Pick. 172. The cases of Tingley v. Bateman, 10 Mass. 343, and Nye v. Liscombe, 21 Pick. 263, were decided on plea in abatement or motion to dismiss ; and, though good authorities on the other point, have no bearing on this.
It does not appear in this case, whether the ad damnum was over $ 300, so as to give an absolute right of appeal under St. 1838, c. 165 ; but if it was not, the defendant had only to put in writing his motion to dismiss the action, and the decision overruling it, in the form of a bill of exceptions ; in which case it would become a part of the record. Then, if he was right in contending that he was not bound to answer, for want of due service of the writ, after a final judgment, either pro forma or upon the merits, he would have the same benefit, in the summary mode of exceptions, of having the opinion of this court upon the question, as he could have in the case of an appeal in the ordinary form.
We are all of opinion, that if the defendant in the original suit was not duly summoned, his appearance by an attorney to take tho exception and make a motion to dismiss the action was not a waiver of his exception. 7 Mass. 29. 12 Mass. 39. 19 Pick. 247
Plaintiff in error takes nothing by his writ.