Fraley vs. Bentley, et al.
that the Statute of 1867-8 repeals that of 1862, and the officer in making the attachment was not bound to follow it. It follows then that the conclusions of law, so far as the seizure of the oxen by the officer was concerned, was in "violatian of law and wholly void;" that the plaintiff was entitled to the possession of the same, and that he recover damages for their detention, were erroneous.
The judgment of the court below is, therefore, reversed and the cause remanded.
JANUARY TERM, 1874.
PRESENT:
Hon. Peter C. Shannon, Chief Justice.
Hon. Jefferson P. Kidder,
Hon. Alanson H. Barnes,Associate Justices.
Fraley v. Bentley, et al.
1. MISJOINDER OF ACTIONS: objection, how taken. Objections on the ground of misjoinder of actions, should be taken by demurrer, motion to strike out, or motion to compel plaintiff to elect upon which cause of action he would proceed.
2. : : waiver of objections. The objection is waived by taking issue upon plaintiff's petition, and such waiver extends to all defects in the firs pleading, except such as are of a jurisdictional character, and that the complaint or petition does not state facts sufficient to constitute a cause of action
3. : : stipulation by waiver. Such waiver is to be taken as a stipulation or agreement that defendant is content with the plaintiff's pleadings, and takes issue upon them as presented.
4. EVIDENCE: depositions. Defendant, by waiving objections to the blending of equitable and legal proceedings in one action, thereby consents that evidence may be received in any of the modes applicable, and the cause may be heard on depositions.Vol. i.—5.
