Stoddard v. Miller

Walker, J. It is insisted, upon the argument, that defendant below, by filing his plea in abatement, waived the right to have the suit dismissed for want of a declaration at the first term of the court. The plea was in abatement of the writ. It was stricken from the files before the declaration was placed upon the files of the court. The plea was not to the declaration, and could not, and did not, operate to admit the right to file the declaration. It only questioned the.right to sue out the writ. The grounds for the motion to strike the declaration from the files, arose after the ground of abatement had occurred. The fact that a party insists upon a prior defect, does not preclude him of the right to urge defects which may subsequently occur in the progress of a trial. The filing of the plea by no means prevented the court from entertaining the motion to dismiss the suit for the want of a declaration in apt time. Was the neglect to file a declaration, at the first term of the court, a ground for dismissing the suit? The twenty-sixth section of the practice act provides, that the attaching creditor shall, “on the return of the attachment, or at the term of the court where the same is made returnable, file a declaration, with a copy of the instrument or account on which the attachment was issued, 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.” In the case of White v. Hogue, 18 Ill. 150, it was held, that the plaintiff must file his declaration at the return term of the writ, but has the whole term in which to file it. And to have the cause dismissed at that term, a rule should be entered, requiring him to file it, in a reasonable time, during the term. In that case it was also held, that the plaintiff, to avoid a dismissal, should file his declaration at the first term, but a failure of the defendant to take such a rule, postponed the right to dismiss until the next term of the court. As the defendant failed to appear and take a rule for a declaration at the return term, he chose to give the plaintiff the whole of the term to file his declaration; and he haying failed to file it during that term, the defendant had the right to dismiss the suit at a subsequent term. „ It is, however, urged, that as there was personal service in the case, that it falls within the provisions of the eighth section of the same act. There seems to be no such distinction made by the twenty-sixth section. It seems to apply as well in terms as in reason, to cases where there is personal service . as where there is not such service. The object of the requirement undoubtedly was to give a speedy trial, or release the property from the attachment, or money from the garnishee process. This reason applies as well to the one case as the other. But even if this was not the object, the statute has required the declaration to be filed at the return term, and its requirements are imperative, and must be obeyed. The judgment of the court below is affirmed. Judgment affirmed.