Rowley v. Cummings , 9 Miss. 340 ( 1843 )

Per Curiam.

The defendants in error, sued out an attachment against the plaintiffs in error, which was levied on property belonging to Rowley, which he failed to replevy. At the return term he appeared, by his attorney, and pleaded in abatement, that he had not absconded, so the ordinary process of law could not be served upon him, but was still a citizen of Warren county, Mississippi. To this plea the plaintiffs demurred, but without disposing of the demurrer, the court rendered a final judgment as on default, paying no attention to the plea, and the question is, was it error to do so ?

It was formerly the settled rule in this State, that a defendant in attachment could not plead to the action until he had replevied or given special bail. Under that rule, the judgment would have been right; but this rule is changed by the act abolishing imprisonment for debt. ' In the case of Garret v. Tinnen, decided at the last term, we held that the bond which a defendant in attachment was required to give the sheriff to release the property, was, in effect, nothing more than a special bail bond, and that as bail could not be required, so much of the law in relation to attachments as required such a bond, was virtually repealed. This being the case, the defendants in attachment had a right to appear and plead without giving the bond, and having done so, the court could not render a judgment by default, in the face of the plea. If the plea had been a nullity, it might have done so, but we are not prepared to say that this was one of that description. The plaintiff did not so treat it, but demurred, which demurrer should have been disposed of. The above rule does not apply in cases of attachment for debts not due, as was decided in the case referred to.

Judgment reversed and cause remanded.