JAN. TERM-, 1856. EDMONDSON 17. CARNALL. EDMONDSON [*284 . V. CARN A LL. A plea in abatement, in an attachment suit, is n:t bad on demurrer, because it prays judgment both of the declaration and writ, the tnatier set up in the plea being to the entire proceedings, and not to so lo uch as is a proceeding in ref,. A plea, that the affidavit filed by the credi; or before the issuance of the writ of attachment, was not taken before any judge, justice of the peace, or clerk of any of the circuit courts within and for this State, is good ou demurrer. An affidavit taken within the count y of t‘ebas-tiau, and State of Arkansas, before "John F Wheeler, Mayor," was taken before one utterly unknown to our laws. Writ of Error to Sebastian Circuit Court. *HON. FELIX J. BATSON, P285 Circuit Judge. Fowler Stillwell, for the plaintiff. 8. FL Hempstead, contra. SCOTT, J. This was a proceeditig by attachment in the Sebastian circuit court. The declaration was in debt on a promissory note for t+132.40. The writ and return, as well as the bond and affidavit are copied in the transcript. The latter is in words and figures following, to-wit "STATE OF ARKANSAS, SS. COUNTY OF SEBASTIAN. I, John Carnall, plaintiff in the above and foregoing declaration, do solem n ly swear, that Samuel Edmond-son, the defendant therein, is justly indebted to me in the sum of one hundred and thirty-two dollars and forty-four cents, and that the said Samuel Edmondson is, as I verily believe, about to remove out of the Sate of Ar-kansas. JOHN CARNALL.
EDMONDSON V. CARNALL. VoL. 17 2861 *Sworn to and subscribed, this w -lich the defendant joined. The 28th day of October, 1854, before me. court held the demurrer well taken ; JoHN F. WHEELER, Mayor." and the defendant refusing to answer The writ was levied upon lands, and over, and electing to rest on his plea, served upon the defendant by reading the court rendered final judgment in it to him. favor of the plaintiff, for the debt and damages, and the defendant appealed At the return term, the "defendant came by attorney a,nd filed his plea to this court, assigning for error the ac-in abatement," in words and figures, tion of the court upon the demurrer, folio wing, and insisting that the plea set up mat-to-wit: ter sufficient to abate the proceeding. STATE OF ARKANSAS, 1 The appellee, by his counsel, insists that the plea was bad, because it COUNTY OF SEBASTIAN. j prayed judgment of the declaration and In the circuit court of said county writ," instead of praying merely that February term, 1855. "the attachment be quashed." SAnuEL EDMONDSON, Defendant. Conceding the principle of law con-Advs. In debt. tended for by appellee's counsel, as to JOHN CARNALL, the severe scrutiny to which pleas in And the said defendant by his at-abatement are to be subjected, it will torney comes and prays judgment of he nevertheless appear from the construc-said writ of attachment, and the dec-tion given by this court to our statute laration on which the same issued in of attachments, in the case of Childress this behalf; because he says that the v. Fowler, 9 Ark. 159, that the plea in affidavit by the said plaintiff, filed question is not obnoxious to the objec-with said declaration in this behalf in tions thus taken to it. the office of the said clerk of the cir-That construction was : 18t. That cuit court of Sebastian county, in the proceeding authorized, was in its the State of Arkansas, on the 28th day character of one suit, as an entirety, a of October, 1854, was not taken before compound proceeding, combining a any judge, justice of the peace, or clerk proceeding in rem, with a proceeding of any of the circuit courts within in personam, each having a distinct and for the State of Arkansas. And identity, but liable to be transformed, so, the said defendant in fact says, that before a final judgment, into a proceed-the said writ of attachment in this being solely in perscnam. That, as a half, issued by the cleik of the circuit whole, it was constituted of "declara-court of Sebastian county, was issued tion, bond, affidavit and writ, in a har-by him as such clerk, on the day and monious combination." That • if, as year aforesaid, without authority, and such, it should "be defective, as it in palpable violation of law, and this, would be in case the affidavit, the bond, he, the defendant, is ready to verify ; or the writ should not be in conform-wherefore, he prays judgment of said ity with the statute, or either should declaration and writ, and that said writ yary, the one from the other, in so be quashed. much as to disturb the harmony of the SAMUEL EDMONDSON, Defendant. whole, as one suit, the entire proceed-By his attorney, IV. D. Reagan. ings, if appropriately assailed, would 287'1 *This plea was regularly veri-necessarily fall. Because being un-fied by the affidavit of Edmonson be-known to the common law, and a mere fore the judge. creation of the statute, with prescribed The plaintiff filed his demurrer, in prerequisites and fixed limits, it must
JAN TERM, 1856. EDMONDSON Vs CARNALL. necessarily stand or fall upon its con-these rights and privileges; but confers formity or non-conformity with the upon the defendant new facility, or terms, upon which, by the statute, it means of abating, not the entire pro-288 6 ] was permieted to be set on ceedings, but so much of them onb foot." Page 163. The statute in ex-as is a proceeding in rem. Ittge166. press terms enacting "on the requisites This new means for abating so much hereinbefore prescribed being com-of the proceedings only as is of the plied with," (Ste. Dig., chap. 17, sec. 6. latter I cast, being that of rum-2d. That in this character, when mary "exceptions" to the af11- viewed in this light, it was substan-*davit, whereby the defendant [41289 tially a new form of action "set on foot may insist upon abateable matter, in by the Legislature not in a condition this mode and for this purpose only, of isolation, but in a harmonious con-under extraordinary circumstances: nection with our entire system of juris-that is to say, extraordinary, in so prudence, as a whole, of which it wat much as that it may be used "in that itself to form a part." And hence, condition of the case in its progress like the other remedies or forms of ac-through the court, when, by the or-tion already known to the law, its want dinary rules of law, dilatory pleas of propriety or efficiency may be could be no longer made available" questioned, and made to appear by the (p, 164, 165), inasmuch as he can only regularly established course of plead-avail himself of this extraordinary ing, applicable to other actions of law, means of defense upon the condition unless in points where the statute, precedent, that he makes his "common which gave it existence, otherwise appearance" and "pleads to the plaint-provides. Page 165. iff's action not a dilatory plea, but a 3d. That such of the provisions of plea to the merits." Page 167, 168, of this statute as establish or provide for the statute, section 29. means of defense against this remedy, This construction of the statute of ought to be liberally, and not strictly attachments, although it went beyond construed ; because, "to apply the any construction that had been given principles of strict construction, which to it by this court, in any decision pre-are usually applied to the enforcement vious to that of Childress v. Fowler, of remedies derogatory to the common did not, however, actually conflict law, to provisions of the statute for re-with any such previous decisions; nor sistance of this class of remedies, would has there been any decision made since be felo de se, and an utter perversion of that time, conflicting with this con-this conservative doctrine." Page 165. struction. And maintaining this one,, 4th. That this being understood and it follows that it was not improper for , applied, "a defendant under the provis-the plea before us to pray judgment ion of section 15, without any aid from both of the declaration and the writ; section 29, would have the undoubted inasmuch as the matter set up in it right to plead any dabatable matter went to the entire proceedings, and within the time, and according to rules not to so much of it, merely, as was a fixed by law for defending against proceeding, in rent; the same having other actions at law, and that such mat-been presented by plea in abatement,_ ter pleaded in due form and apt time, verified by affidavit, interposed before would go to the entire proceedings." common appearance to the action, and Pag j 166. within the time allowed by the ordi-5th. That section 29 was not de-nary rules of law for interposing dilatory defenses in every form of ac-signed to impair, or take away any of tion.
VOL. 17 No other question has been raised by counsel. As to the sufficiency of the matter set up, the plea seems good upon its face. The statute declares that the affidavit "may be taken before any judge or justice of the peace within the State." Dig., chap. 17, sec. 4. The plea alleges that the affidavit "was not taken before any judge or justice of the peace, or any clerk of any circuit court, within and for the State of Arkansas." The demurrer admits this to be true. The affidavit, as it appears in the transcript, was taken before "John F. Wneaer, Mayor," and it also appears 2901 to have been *taken within the county of Sebastian, and State of Arkansas. If Wheeler was the Mayor of the municipality indicated by this caption, he is utterly unknown to our laws; if, of some other, there is no indication in the record, of what city, town or district, either within this State, or beyond its limits. We think, then, that upon this record, the plea upon its face was good until avoided. The result is, that the 'court below erred in sustaining the de-murrer, and for this, the judgment rendered must be reversed, and the cause remanded, Sze. Cited:-24-242-616; 26-4; 34-712.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.