Rainey v. Planters Bank of Tennessee ( 1853 )

Mr. Chief-Justice Smith

delivered the opinion of the court.

The writ which issued in this case was made returnable to the September term, 1849, of the circuit court of Tippah county, which, by law, is holden on the first Monday of September. It was served upon Richards on the 29th, and on Rainey the 31st, of the August preceding. The first Monday of September, 1849, was the third day of the month. A judgment by default was rendered against both of the defendants at return term. This was error. The statute, Hutch. Code, 835, requires five days’ notice before the commencement of the term to which a capias ad respondendum is made returnable, in order to authorize the plaintiff to demand a judgment by default. And five days had not intervened between the service of the writ on Rainey and the commencement of the term.

Let the judgment be reversed, the cause remanded, and a new trial awarded.