Brackett v. Brackett

Wagner, Judge, delivered the opinion of the court. ' The exceptions in this cause arise on the action of the court in sustaining a motion to quash an execution. From the exhibits, it appears that the plaintiff brought his suit by attachment, and the petition contained three counts; one founded upon a promissory note; one on an open account; and the other was a declaration for money loaned. The defendant appeared and filed his plea in abatement, which was sustained by the court, and the attachment was dissolved. No answer being filed, the court at the same term rendered judgment in favor of the plaintiff for the amount of the note set out in the petition. Hpon this judgment execution was sued out, and at the next or return term of the court, the defendant appeared and moved to quash the execution, because, 1st. The judgment rendered in the cause was a final judgment, rendered at the same term with the interlocutory judgment, and the same was on a petition founded on a note for the direct payment of money, and on an account not stated or itemized; and, 2nd. The court had no jurisdiction over the defendant in the cause, as the suit was instituted by attachment, and the plea in abatement was sustained by the court. First. It is Unnecessary to inquire whether the court committed any error in giving judgment on the note, without noticing the additional counts or causes of action set forth in the petition, or whether the judgment was entered up at the proper time. If the court possessed jurisdiction, it had the undoubted power to enter final judgment, and any irregularity it committed would enable the party to reverse the judgment on error or appeal, or vacate the same by a direct proceeding, but it would surely not be competent t.o attack it collaterally. [267] Second. When the plea in abatement was found for the defendant, that did not deprive the court of jurisdiction to proceed'with the case as an ordinary action. By the statute, (1 W. S., 189, § 42,) it is provided, that if' the issue upon the plea in abatement is found for the defendant, the attachment shall abate, and the plaintiff pay the costs accruing therein, but the suit shall nevertheless, proceed to final judgment, on the cause of action alleged in the petition, as though commenced by summons alone. , This section furnishes a full warrant for the proceeding of the court. * After the attachment was abated, then the case remained on the docket as an ordinary action commenced by summons. • Counsel have here argued, that the court had no jurisdiction, because neither of the parties were residents of the county where the suit was brought. But the record does not disclose that fact, and the presumption must be in favor of the judgment. ' If defendant has any remedy, he must pursue it in a different manner. Wherefore the judgment must be reversed, .and the cause remanded. All the Judges concur.