White v. Hogue

Caton, J. This was a foreign attachment, commenced on the 16th of September, 1856, and returnable to the next term of the circuit court, which commenced on the 13th of October, following. On the 17th of September, it was levied on certain real estate, and served on a garnishee. No personal service was had on the defendant, nor was any notice published; and no declaration was filed. During the October term, the defendant entered his appearance, and on his motion the action was dismissed for the want of a declaration, which is now assigned for error. The decision of this case involves a construction of the 26th section of the practice act, which is as follows: “In cases of attachment against absent or absconding debtors, the attaching creditor or creditors shall, on the return of the attachment, or at the term of the court where the same is made returnable, file a declaration, together with a copy of the instrument or account on which the attachment was issued, as in other cases; after which the cause shall proceed as in other cases; and if no declaration shall be filed, the defendant, on entering his appearance, shall have a judgment against the attaching creditor for costs.” This section undoubtedly requires the plaintiff to file a declaration at the return term of the attachment, whether he be in a position to demand a trial of the cause or not, or else be liable to a judgment against him for costs, in case the defendant enters his appearance; but it does not, like the eighth section of the act, require him to file his declaration ten days before the term, in order to avoid such consequence, but gives him the whole of the term for that purpose. If he desires to entitle himself to a hearing, and not to avoid a dismissal, the eighth section then applies, and requiz-es hizn to file his declaration ten days before the tez-zn, as in other cases. As the statute would have beezi complied with, had the declaration been filed at any time during the term, the motion to diszniss, which was sustained, was premature, being within the time within which the plaintiff had a right to file his declaz-ation. The defendant objects to this construction, for the reason that it postpones his right to have the cause dismissed till the subsequent tez-zn, for we cannot know, until the term is closed, that the contingency has happened which entitles the defendant to a judgznent for costs. This may be so, unless the defendant should obtain a rule on the plaintiff to file his declaratiozi within some reasonable tizne drn-ing the term, which the court would have the light to enter, under its general powez-s of contz-ol over the business before it. Such a power we think the court possesses in cases of this kind. As this case was dismissed during the first term, without any rule having been entered for a declaration, we Brink the court erred, for which the judgment must be reversed and the cause remanded. Judgment reversed.