82 Mo. 522 | Mo. | 1884
It appears from the record in this case that the suit, which was by attachment, was commenced before a justice of the peace in Turnback township, Lawrence county. 'Defendant resided in and was served with summons in Lincoln township, in said county. Defendant made no appearance before the justice of the peace, and judgment was rendered against him by default. He after-wards moved to set aside this judgment, appearing for that purpose only, which motion being overruled, he appealed to the circuit court, and, appearing only for that purpose in the circuit court, filed his plea in abatement to the attachment, and on motion of plaintiffs, was required to give another attachment bond, which not being given, the attachment was dissolved, whereupon defendant filed his motion to dismiss the suit, basing it on the ground that, as the suit was brought before a justice of the peace in Turn-back township, and defendant was not at the time and never had been a resident of said township, but was served with summons in Lincoln township where he resided, and which was not adjoining Turnback township, the justice acquired no jurisdiction. The court overruled the motion and rendered judgment by default-, from which action of the court defendant has prosecuted his ■writ of error to this court.
Under our ruling in the cases of Brackett v. Brackett, 61 Mo. 221, and Peery v. Harper, 42 Mo. 131, the appearance of defendant in the circuit court, for the sole purpose of' filing a plea in abatement, was not such an appearance to-
It, therefore, follows that the court erred in overruling defendant’s motion, and the j udgment is hereby reversed .and suit dismissed,