Neal v. Wm. N. & Wright Bookout

By the Court Lumpkin, J., delivering the opinion. The thirty-first section of the Attachment Act of 1855-’6 declares, that it shall be lawful for the defendant in attachment to traverse the truth of the affidavit, in relation to the grounds upon which the attachment has issued, “at the return term of the attachmentand the issue thus formed is to be tried at the first term, unless good cause be shown for [42] a continuance, and either party being dissatisfied with the verdict, is entitled to appeal. (Pamphlet, p. 33.) Can the traverse thus authorized be allowed at any other than the return term of the attachment? We think not. Nor does this construction of the statute work any serious detriment to the defendant. He may still come in and defend the case upon th'e merits. But in this case, there is, we apprehend, a fatal objection to the proceeding. The attachment was returnable to the July Term, 1857, of the Inferior Court. At the trial term, in January thereafter, the traverse was tendered and disallowed by the Court; and thereupon, the defendant confessed judgment to the plaintiff for his debt, reserving the right of appeal, which was duly entered. But this appeal' did not, of course, take up the traverse. It remained where it was left in the Court below, no certiorari being sued out to reverse the judgment of the Inferior Court, in refusing to allow the traverse to be filed at the appearance term of the attachment, and no attempt being made to carry it up by appeal. For, we repeat, the defendant did not confess for the debt; and further, that he absconded, with liberty of appeal, but for the debt only. How does this issue come up, then, and be treated as upon the appeal? The whole proceeding was coram, non judice and void. This being so, it is useless to consider the charge ‘of the Court. The case must be reinstated, and a trial had upon the merits — upon the appeal. It is too late to take up and try the preliminary question, as to whether or not there was ground for the attachment. Judgment affirmed.