Napper v. Noland

COLLIER, C. J. 1. Where • an attachment issues on the ground that a party is about to remove his “ goods and effects,” the statute requires the plaintiff, “his agent, attorney or factor, to make affidavit in writing, that the person against whom the attachment is prayed,” “’is about to remove his or her property out of the State, and that thereby the plaintiff will probably lose the-debt, or have to sue for it in another State” — (Aik. Dig. s. 3, p. • 37.) The. affidavit declares, that .as a consequence of the removal of the “goods and effects” of the defendant below, “ the of unary process of law cannot be served on him;” and the writ of attachment states the consequence of the removal to be, that “ the ordinary process, of law cannot be served upon the same” — that is, the “goods and effects.” The proceedings on the attachment, then, are not conformable.to the statute, and the defect reaching back to the affidavit, they could not be amended in the Circuit court. 2. It has been heretofore decided by this court, that a • judgment by default, where no declaration appears of record, is reversable on error — (Wheeler et al. vs. Ballard, 6 Porter’s R. 352.) 3. Where the term of a court is limited to six-days, a judgment by default, for want of a plea taken at the return term of a-writ, is irregular — (Rather vs. Owen, 1 Stew. R. 38.) And our statutes do not distinguish be- . [220] tween suits commenced by attachment, and in the ordinary mode of suing, except in the case of non-resident defendants — (Aik. Dig. s. 15, p. 41.) The Circuit court of Benton, is authorised to continue its session, until the business before it, shall be disposed of. The record before us does not show when the court adjourned, o.r when the judgment was rendered, and we cannot intend it to be erroneous, inasmuch as it would be regular, if the court continued to do business after the first week. But for the first, and second grounds taken by the plaintiff, the judgment must be reversed, and as he could qo,t proceed below, it will be unnecessary to remand the §ase,