Rowen v. Taylor , 1 Bur. 74 ( 1842 )

Milleb, J.

This suit was commenced by attachment in the district court of Dane county, by the plaintiff against the defendant, on an affidavit alleging fraud. At the second term, in pursuance of the statute, the plaintiff filed two declarations against the defendant, and took a second default. A jury was then called and sworn to assess the damages, and afterward the defendant’s counsel filed a motion in arrest of judgment, on the following grounds.

1. That the attachment, affidavit and levy are defective.

2. There was no publication of the pendency of the attachment.

3. The proceedings are irregular, defective and uncertain.

Upon this motion the district court ordered that the judgment be arrested and that this cause be dismissed at the costs of the plaintiff. To reverse this judgment the plaintiff sued out this writ of error.

The attachment is informal but not defective. The affidavit is correct, according to the statute. The return does not state what property or effects of defendant were found in the possession of the garnishee, but he appeared in pursuance of notice and disclosed what were in his hands, which were choses in action. The proceeding, in this particular, should be considered correct, particularly at the time the objection was made.

As it regards the second objection, it appears that after the jury was sworn and part of the testimony received, the defendant by his attorney, moved the court to abate the proceedings for want of the publication of notice of the pendency of attachment, and immediately withdrew it, and let the investigation proceed. It also appears that although this was a judgment by default, yet the defendant, by his attorney, appeared when the jury was sworn. If the counsel had persisted in his motion to abate, there would have been no difficulty in the case. It was at the second term, and the first appearance of the defendant, and it would have been the duty of the court to abate the proceedings, for the law is imperative. But he withdrew his motion, and let the investigation proceed, until a finding to a large amount was returned against him. The practice of the law is a regular system, and in it there is a time for every thing. But even without this objection to the proceedings of the defendant’s counsel, the motion filed after the verdict does not meet his case. The motion is in arrest of judgment, for want of publication. The want of notice is matter in abatement, not in arrest. 4 Yates, 375.

On the third exception the record was examined thoroughly, and although the exception does not point out the irregularities or defects, yet the court may notice defects apparent on the record. A judgment may be arrested for an objection on the face of the record, though it was not assigned at the time of filing the motion or entering the appeal. Grasser v. Eckhart, 1 Binney, 575. In this case the plaintiff filed two declarations ; one in debt on a judgment recovered and other matters; the other in case for damages for a breach of contract. The jury were sworn generally, who reported a verdict in debt and damages, without any special reference to these declarations. Under the seventh section of the attachment law, the plaintiff, and every other creditor of the defendant, may file their declarations. This allows the plaintiff to file his declaration on the claim on which the attachment was issued, and also additional declarations, as other creditors, on other and different causes of action ; but there must be a separate judgment on each declaration filed. These two declarations are so dissimilar and inconsistent that they cannot support a general verdict. The same reason for arresting the judgment in this case exists, that would have existed if they were embraced in separate counts of the same declaration. Por this reason the district, court was correct in arresting the judgment.

Judgment affirmed, with costs