Bonner v. Brown
Bonner & Smith v. Chas. A. Brown
Headnotes
Summary
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Opinion of the Court
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Spopford, J.
This suit commenced by an attachment against the property of the non-resident defendant.
The defendant was never personally cited.
A curator ad hoc was appointed to represent him.
*335 Afterwards, to wit: on the 22d March, the defendant appeared by his attorney, F. Mount, and took exception to the suit and prayed for its dismissal because there was no service of citation on the defendant and no seizure of effects of the defendant; at the same time, he took a rule on the plaintiffs to show cause why the attachment should not be set aside, because the recital in the bond showed the suit to have been brought in the Commercial Court, which said court was not in existence at the date of said bond.
On the trial of the exceptions and rule, which were taken, submitted and decided together, the attachment was properly dissolved for 'the fatal error in the bond, but the exceptions to the jurisdiction were dismissed, and the defendant was ordered to answer over, because, as the District Judge stated in his reasons, “ the exceptions were cured by the appearance of the defendant by his attorney F. Mount."
But hitherto, the attorney had only appeared for the purpose of excepting to the jurisdiction of the court and taking a rule to dissolve the attachment; and the attachment having been dismissed, the exception should have been sustained. The defendant was not in court by seizure of his property, by personal citation, or by a voluntary appearance to answer to the suit.
A party’s appearance by attorney to move for the dismissal of an attachment and to except to the jurisdiction of the court over him, cannot be construed into a submission to the jurisdiction.
As the defendant afterwards answered under protest, reserving his plea to the jurisdiction upon which he still resists, we think he is entitled to relief.
It is, therefore, ordered that the judgment of the District Court be reversed, the exception to the jurisdiction sustained, and the suit dismissed, the plaintiffs paying costs in both courts.
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