Reaugh v. McConnel

1. Notice of attachment — one sufficient. Notice of the pendency of an attachment suit once made by publication, renders another notice by publication unnecessary on the remand of the cause from this court, for another trial. The defendant prosecuting a writ of error to this court, and succeeding here, is in court -to which the cause is remanded. 2. Variance in name—error to dismiss far. It is error to dismiss a suit by attachment for a supposed variance between the name by which the party is sued, and the name in the notice by publication. 3. The proper course is to plead in abatement.

Writ op Error to the Circuit Court of Morgan county ; the Hon. D. M. Woodson, Judge, presiding. The defendants in error commenced an action of assumpsit against the plaintiff in error, by attachment. The affidavit on which the writ of attachment issued, was dated August 11,1862, and the writ made returnable to the September term of the Morgan Circuit Court. The writ was levied on certain real estate in Morgan county, and duly returned. A declaration was filed at the September term, 1862, and notice by publication to the defendant, to appear and plead at that term, was presented to the court. A judgment by default was entered, and the cause brought to this court at the January term, 1864, and errors assigned, where, on the errors being confessed by the defendants in error, the j udgment was reversed, and the cause remanded to the Morgan Circuit Court. On the remand of the cause, the clerk of the Circuit Court caused a new notice to be published of the pendency of the suit, and for the appearance of the defendant, at the September term, 1864. In this notice, the name of the defendant is William H. Reigh, while in the affidavit and declaration on file, it is William H. Reaugh. At the September term, 1864, the defendant entered his motion to quash the notice of publication, insisting that it was not a notice to the defendant, but to a person of a different name. The court denied the motion, and, no defense being made, a judgment by nil dicit was rendered against William H. Reaugh, and the damages assessed at one hundred dollars, on which final judgment was entered. The case is brought here by writ of error, and the following errors assigned: First, the court erred in assuming jurisdiction in the case, and in-rendering judgment against the defendant; Second;, in overruling the motion to quash the notice of publication ; and there was joinder in error.