Terry v. Curd & Sinton Manufacturing Co.

Campbell, J., delivered the opinion of the court. While no objection exists to attaching one and then declaring against him and another, this action was premature as to Mrs. Terry, for no part of the debt was due when the suit was commenced as to her. Wiggle v. Thomason, 11 S. & M. 452 ; Winston v. Miller, 12 S. & M. 550. And these cases show that the objection is available to her here. Therefore, the judgment must be reversed as to her. But we find no error as to Mr. Terry, as to whom the suit commenced by attachment was not premature. He was personally summoned to appear and answer the action, and was liable to have judgment rendered against him, as if the action had been an ordinary one, § 2436 of the code, and cannot complain of [399] the judgment by default. Wherefore the judgment will be affirmed as to him, in accordance with code, § 1440, and judgment will be etmtered here against him and the sureties on the appeal-bond, as-provided by code, § 2332. ■