Forsyth v. Warren , 62 Ill. 68 ( 1871 )

Mr. Justice Thornton

delivered the opinion of the Court:

In this case the judgment was set aside, and a rehearing granted by the court, upon its own motion.

The objection, that sixty days did not intervene between the first insertion of the publication of notice and the first term of the court, is not well taken. In the computation of the time, in such case, the rule established is to exclude the day of the first insertion, and include the first day of the term. By this rule, sixty days did intervene. Vairin v. Edmonson, 5 Gilm. 270.

The recital in the notice of publication of a date to the writ of attachment subsequent to the return term, is not a fatal defect. Independent of this recital, the notice informed the debtor of the attachment, against whose estate, for what sum, and before what court it was pending, and that, unless he appeared at the court house in Chicago at a fixed time, and plead, judgment would be given against him. The statute was fully complied with, and the party could know from the notice when and where to appear and defend the attachment. He could not have been misled by the mistaken and unnecessary date.

The last objection is, that the judgment exceeds the sum stated in the affidavit and subsequently accruing interest. There was no other jurisdiction obtained in the case, except by levying the attachment and publishing the notice. The excess is conceded. The cases of Rowley v. Berrian, 12 Ill. 202 ; Hichins v. Lyon, 35 Ill. 150; and Hobson v. Emporium Co., 42 Ill. 306, hold that this is error.

We can not accede to the proposition urged by appellee, that appellants waived this error by coming into court after judgment, though at the same term, and praying an appeal. If the exercise of the right which the law gave him to correct the error by appealing to this court, is to be deemed a waiver of the error in this ease, we are unable to see why it would not in every other.

The judgment of the court below must be reversed, and the cause remanded.

Judgment reversed.