ARK.] 000011 vs. Jr., 383 GOOCH VS. JETER. Where a defendant in a suit by attachment is not served with process, a motion to quash the writ is not such an appearance as will warrant a judgment nil <licit; the bare-motion to,quash does not constitute a valid appearance. Tius was an action of ,debt, determined in the Phillips Circuit Court, in June, 1842, before the ifon. Joux C. P. ToLLEsox, one of the circuit judges. Jeter sued Gooch on a transcript of a judgment from the State of Mississippi, instituting his action by writs of attachment. Two writs issued; one to Phillips county, and one to Monroe, each containing a clause of garnishment, by which John J. Bowie and Reason Bowie, were ordered to he . summoned as garnishees. The writs were levied on property of Gooch in each ,eounty, and the Bowies were summoned under the writs to Phillip On the 18th of May, 1842, Gooch appeared and filed a motion to quash the writs, accompanied with an affidavit that the Bowies resided in Phillips county. The record of May . 21, states that the plaintiff, having on the day before filed a motion to amend the writ to Monroe, by striking out the clause as to the Bowies, that motion was entered nunc pro tunc, and the motion to quash "ordered to be sustained." On the first of June, the court sustained the motion to amend, and the defendant excepted. refused to anF4wer further, and judgment was taken by default, in favor of the plaintiff.
384 GOOCH vs. JETER.. [5 Cummins, for plaintiff. Pike & Baldwin, contra. • By :the Covirt, LA CY, J. We hold that there is no valid appearance to the action. The plaintiff instituted his suit by attachment, and issued two 'eparate . writs, each containing a clause of garnish-ment, against 'J. J. and Reason Bowie, directed to Phillips and Mon-. roe counties. Thereupon the counsel for the defendant, who is shown to be a non-resident, filed an affidavit stating that the Bowies did not reside . in Monroe, but in Phillips county, and moved to quash - both the original and the counterpart of the writ; which, by the court, was ordered to be done. During tlie pendency of this motion, the plaintiff's counsel moved the court to amend the writ issued to Monroe county, by the erasure of the Bowie's names, and which motion was taken under advisement, and after ordering the motion quashing the writs to be sustained, the court subsequently:directed the amendment to be made, which was accordingly done; and upon this state of facts, the case was tried and judgment entered as to the defendant,- by nil dicit. There was no personal service of the writ, nor was there any publication against the defendant as a non-resident, as the statute in such .cases requires. The only enquiry then is, did the motion which was founded upon the affidavit of the defendant's , counsel to quash the writs, - constitute a valid appearance? We think it is tolerably clear it did not. The object of the motion was to quash, and not to -appear to the writs; and sso the court and opposite counsel considered and treated the matter. For, it is upon this supposition the motion to amend was filed and prevailed. The ino-tion to quash. was intended to avoid, an appearance as to the garnishees, as well as the other defendant. The attorney for the defendant did no other substantive act. He did not appear to the amended writs, or appear to the action. The bare motion to quash does not constitute a good appearance. The court below, then, erred . in entering judgment as to the defendant, which is hereby ordered to be reversed.
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.