Collins v. Nichols

Gookins, J. . Collins commenced a suit by attachment before a justice of the peace, alleging that the defendant, Nichols, was a non-resident of the state. On the return day, the parties appeared, and the cause was continued by agreement to a future day, when they met and tried the 'cause. The justice gave judgment for the defendant, from which the plaintiff appealed to the Common Pleas, where they again appeared, and continued the cause to a subsequent term; at which term the defendant moved that the attachment be quashed, and the suit dismissed, and against the plaintiff’s objection, was permitted to prove, in support of the motion, that at the time the writ of attachment was sued out, he was a resident of La Grange county. The Court dismissed the suit, and the plaintiff excepted. 1. A defendant, after appearance, may move to quash the attachment; 2 E. S., p. 70, s. 188; but for matter not apparent on the face of the proceedings, he should plead in abatement. Ibid., p. 455, s. 34, 2. After appealing to the action, a continuance by agreement, a trial, an appeal, and another continuance, it was too late to make the objection [448] in any form. A party should avail himself of matter in abatement at the earliest opportunity. Wibright v. Wise, 4 Blackf. 137.—Swift v. Woods, 5 id. 97. 3. That the plaintiff was a resident was no ground for dismissing the suit, after answering to the action, whatever effect it might have had upon the attachment. When a defendant is personally served, or appears to the action, the cause proceeds as in other cases, and judgment is rendered personally. 2 R. S., p. 70, s. 188. A. Ellison, for the appellant. J. B. Howe, for the appellee. Per Curiam. The judgment is reversed with costs. Cause remanded for farther proceedings, not inconsistent with this opinion.