McNair v. Kaiser

delivered the opinion of the court.

The record does not show the existence of the condition authorizing an attachment under § 1534 of the code. Where suit shall be commenced in the proper county, as provided by § 1498, and the defendant shall not be found, the plaintiff may have an attachment, as provided by §1534, but the record must show the concurrence of the conditions on which alone the extraordinary process given may be ordered and issued. It must show that the suit was properly commenced in the circuit court of the county and that the defendant cannot be found. This does not appear in this record. The attachment should have been discharged on motion. But the appellant (defendant below) appeared, and, after moving to discharge the attachment, filed a plea in abatement, which was stricken out because filed after time without leave of court, and then he moved for leave to file his plea in abatement, which was refused, but he was offered leave to plead to the action,. and, refusing to plead to the action, judgment final as for want of a plea was given against him. It was not erroneous to render final judgment for want of a plea, but the attachment should have-*786been discharged, and we reverse the judgment and proceeding to render here the judgment which should have been rendered in the court below, discharge the attachment at the cost of the appellee, and give judgment final against the appellant for the sum due by him to the appellee as shown by the record.