Shields v. Barden, 6 Ark. 459 (1846)

April 1846 · Arkansas Supreme Court

6 Ark. 459

Shields vs. Barden.

Want of profert cannot be taken advantage of after judgment by default, but only on demurrer. Tucker et al. vs. R. E. Rank, 4 Ark. R. 429, cited.

Where the defendant, in a suit by attachment, enters into bend, under Sec. 13, 14,-Chap. 13, of Rev. Stat. the case stands as though it had been commenced by otdina--ry summons.

The defendant, by entering into bond and releasing the attachment, has notice of the pendency of the suit, and is bound to appear and answer the action, or suffer judg. ment by default upon the calling of the cause, according to the practice of the court.

By entering into bond, the defendant waivs the time allowed for appearing and answering the action in cases of notice by publication. '

Where the judgment is nil dicit when it should have been by default, it is merely informal, and will not be reversed on that account.

Writ of error to the circuit court of Jefferson county.

This was an action of debt, by attachment, brought by Charlotte Barden, assignee of Absalom Fowler, against Mary C.- Shields, and determined in the circuit court oí JeAsr on comity, at the April term 1845, before the Hon. Wijlmasi H. Suva-ron, Judge.

The action was founded an a writing obligatory, for the payment of money, executed by the defendant to Fowler, and assigned by him to the plaintiff. No proferí was made of the assignment.

The plaintiff filed her declaration, affidavit of defendant’s indebtedness and non-residence, and attachment bond on the 13th of September 1844, and upon the same day the writ of attachment was issued, returnable on the 14th October following. The sheriff returned that he had executed the writ by levying upon, and taking possession of a negro girl, the property of defendant, and that the defendant was not found.

At the return term, (Oct., 1844,) the defendant failing to appear, the court made an order of publication, under Sec. 24, 25, Rev. Stat. Chap. 13, page 119, requiring her appearance by the third day of the next term (April 1845,) or that judgment would be enterned against her &c.

On the 31st October 1844, the defendant filed with the Clerk, in vacation, a bond, under sec. 13, chap. 13, Rev. Siat. page 117, conditioned for her appearance &c.

On the first day of the April term, 1845, the plaintiff filed the order of publication, and took, a judgment, nil dicit, against the ■defendant for the amount of the note &c.

The defendant brought error; and it is assigned for error, 1st that there was no proferí of the assignment, of the bond sued on, by Fowler to plaintiff: 2d judgment was rendered against defendant on .the first day of the term, when under the order of publication she was allowed until the third to appear, &c.

Oldham J.,

delivered the opinion of the court.

Want of profert cannot be taken advantage of after judgment by default, but only on demurrer. Tucker et al. vs. The Real Estate Bank. 4 Ark. 429.

When the defendant below entered into bond the attachment was released, and the case then stood in the same position as though it had been commenced by an ordinary summons. Rev. Stat. ch. 13, sec. 13, 14. She then had notice, and was bound to appear and answer the action, or ¡suffer judgment by default, upon the calling of the cause, according to the pratice of the court. Had the attachment not been released, no personal notice having been served upon the defendant, she would by law have had until the third day of the term next after publication in which to plead to, or otherwise answer the action. By' entering into bond and releasing the attachment, she waived the time allowed by law in cases of attachment, in which constructive notice is given the defendant.

The judgment is nil dicit, when it should have been by default, the defendant having made no appearance to the action. But that is a matter of form only, as the judgment would have been for the same amount, whether rendered by default, or nil dicit: At least, it does not constitute sufficient error to justify a reversal of the judgment. Affirmed.