James C. Craft, Plaintiff in Error, v. Daniel M. Turney, Defendant in Error.
ERROR TO COLES.
Unless a party files his declaration in an attachment suit, ten days before term, he is not entitled to a trial at such term.
This was a suit in attachment, by Turney against Craft. Writs were returnable to third Monday of May, 1859, and levied on personal and real estate, but no return was made by sheriff as to defendant. By act of February, 1859, the term of court was changed to the first Monday of April, 1859. The defendant, by his attorney, moved for a continuance, because declaration was not filed ten days before the term. Motion was overruled, and defendant excepted. Default was taken; damages assessed by a jury, and judgment rendered against defendant.
M. C. McLain, and James C. Conkling, for Plaintiff in Error.
H. P. H. Bromwell, for Defendant in Error.
Walker, J.
To entitle the plaintiff in an attachment cause to a trial at the return term, he must file his declaration at least ten days before the term, as in other cases. White v. Hogue, 18 Ill. 150. In this case, the declaration was not filed until the first day of the term, and the defendant’s motion for a continuance should have been allowed. The court therefore erred in overruling the motion, in entering a default, in assessing the damages, and rendering the judgment, which is reversed, and the cause remanded.
Judgment reversed. .