61 Ill. App. 234 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
The June term, 1894, of the Circuit Court, began on the 18th, and. to that term the appellant was summoned, and a declaration filed, ten days before the term, so that his plea was due at that term, and as he did not plead, judgment ivas properly taken against him by default, on the 20th. Of all this there is no complaint.
On the 16th, the appellees filed an affidavit for an attachment in aid, and an attachment writ was issued and served on that day upon several garnishees, of whom Susan Bugas was not one, though she afterward answered interrogatories addressed generally “ to the garnishees summoned,” on which answer judgment against her was entered.
On the 28th of June, long before Susan Bugas ansivered, the appellant filed a plea denying the affidavit, upon which no issue was taken, nor was it otherwise disposed of, unless by operation of law, as the appellees contend.
It is part of the loose practice of this State that a party in court must watch the proceedings and take notice of all that is going in his case, and therefore that no notice of an attachment in aid need be given to him. Bailey v. Valley Nat. Bk., 127 Ill. 332.
There is neither statute nor decision which determines when a defendant shall plead to an attachment in aid. In the nature of things he may plead. The statute says that such proceedings shall “ be as are required or permitted in original attachment, as near as may be.” Sec. 31, Ch. 11, Attachments.
In original attachments the practice and pleadings “ shall conform, as near as may be, to the practice and pleadings in other suits at law.” Sec. 26. By section 27, the defendant may, by plea, traverse the facts stated in the affidavit. By the practice act—as the result of several provisions too long to quote, but well understood by the profession—the defendant need not plead in ordinary actions, until a term at which he has been served, and a declaration filed, not less than ten days before the beginning of the term.
Vow, “as near as may be” to that practice gives the defendant in an original attachment time to plead to the affidavit until a term beginning not less than ten days after he is served with the attachment; and “ as near as may be ” to that practice is that the defendant shall not be required to plead to the affidavit for an attachment in aid until a term beginning not less than ten days after the attachment in aid —which need not be served upon him, was sued out. The plea here was before such a term had begun-—was therefore in time—the appellant was entitled to a trial upon it, and had the issue tendered by it been found for the appellant, the garnishees would have been- discharged.
The judgment taken against Susan Dugas was irregular and wrongs the appellant; it is therefore reversed and the cause remanded.
These views are consistent with the course pursued in Schulenberg v. Farwell, 84 Ill. 400, and with what is there said by the Supreme Court, until they reach the topic of discontinuance or abandonment—a question not in that case nor in this.
In Rutledge v. Stribling, 26 Ill. App. 354, it does not appear that the attention of the court was called to the time at which the affidavit was filed, or when a plea thereto was due, but only to the question whether the writ in aid should have been served upon the defendant. Beversed and remanded.
