Vairin v. Edmonson

The Opinion of the Court was delivered by Treat, C. J. This was a foreign attachment sued out in March, 1842. The statute then in force provided that the defendant should be notified of the pendency of the attachment by the publication of a notice in a newspaper for four weeks successively; and in case sixty days should not intervene between the first insertion of the notice and the first term of the Court, the cause should be continued. Rev. Laws, 1833, 87, § 11. The only question presented by the record is whether the requisite notice was given. The notice was first published on the 27th of May, and the succeeding term of the Court commenced on the 25th day of July. The proper rule for the computation of time in such case is to exclude the day on which the notice was first inserted, and include the day on which the term commenced. Ewing v. Bailey, 4 Scam. 420. By this rule, but fifty nine days intervened. The'Court, therefore, should have continued the cause instead of proceeding to enter a judgment by default. It is insisted for the defendant in error that the notice and the accompanying certificate of the publisher form no part of the record of the case. We think otherwise. The statute makes the certificate of the publisher with a eipy of the notice annexed, sufficient evidence of the fact of publication. Rev. Laws, 1833, 62. The notice stands in the place of process, and performs the same office. If is issued by the clerk, and the certificate of the publisher maybe likened to the return of an officer. The defendantis not before the Court until the notice has been regularly given, and the time allowed him to appear has expired. The Court has no more authority to enter judgment against him till this has transpired, than it has to render a judgment against a defendant in an ordinary action who was not served with process ten days prior to the commencement of the term. The record should show that the notice was given and for the length of time required by the statute. To sustain a judgment by default, the record ought affirmatively to show that the defendant was regularly served with process, or in the case of an attachment, that he was duly notified of the pendency of the proceeding. ■ The cases of Voorhees v. The Bank, 10 Peters, 449, and Parker v. Miller, 9 Ohio, 108, are not in point. There, the question of the regularity of the proceedings arose collaterally, and not directly, as in this case. The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceedings. Judgment reversed.