Wilkie and Tullar in error, vs. Geo. W. Jones, by pro. ami, L. Jones

July, 1841. Wilkie and Tullar in error, vs. Geo. W. Jones, by pro. ami, L. Jones. Order of publication under the sstat. regulating attachments returnable to next term intends the next- regular term. And judgment cannot be entered at ar. intervening special term. Under the attachment law where there is no. personal service judgment should be in rent, and not in personam. This suit was brought by attachment against Wilkie and Tullar who Were non residents. The summons was issued and returned to the February Term, A. D. 1840, “not found” as to both defendants. Property was attached and publication made requiring the defendants to appear and plead at the next term or judgment would be entered up against them. Before the next regular term a special term was appointed and held in May .of the same spring. At that special term judgment was entered up against the defendants by default. The case is brought up on the following assignment of' errors. First. The court erred in entering up judgment at the special term of the court. Second. The court erred in entering up judgment against the person, it being a proceeding in rem. Wm". H. Starr, for plaintiffs. It cannot be expected that non residents should know when a special term was appointed. It is not of course entered on the records; but if it were it would be no notice to a citizen of Illinois. A judgment where there is no personal service, shall he entered only against,the property and not against the person. Iowa Slat. Ch. 5, sec. 20; lo. Stat. Dis. Co. p. 129, sec. 8; 6 Am. Com. Law 300. The judgment must he such that the clerk can issue the execution properly upon it. The legislature in providing for publication in attachment cases, could not have contemplated special terms. Browning, for defendant. Where judgment is to be entered only against particular property the statute provides for it. It is objected that judgments should not be entered at a special term. The law provides for special terms, and they are as much recognized as the regular terms. When a special term is. appointed it is recognized by law, and parties are bound to appear and plead. In suits by attachment judgment should be entered generally, and the elerk should issue execution against the property attached. Starr in reply. It is a rule in the construction of statutes, that a reasonable construction should be given, especially where the words are doubtful. Cases may be presumed in which extreme hardship might arise to parties by requiring them to answer at special terms. The law requires publication for four weeks, but notice of holding a special term need be given only three weeks. The publication gives notice that judgment will be entered at next term. It could not be entered at the special term? if one should be holden, as it might be, within four weeks after the regular term, because it cannot be notified four weeks, nor at the regular term, becansethat is not the next term, and therefore could not be entered at either. [MAJORITY — by the coubt.] by the coubt. This action was commenced on the 31 December 1839, to February term 1840. Summons was issued and returned to February term, not served. Notice was published 31 March, 1840 to defendants to appear at next term. The proceeding in attachment as authorized by the statutes of the several states is always viewed as a violent proceeding. A proceeding wherein the plaintiff at the inception of his suit seizes upon the property of the defendant without waiting to establish his claim before the judicial tribunals of the land, and the statute authorizing it has invariably received a strict construction. The Statute of Iowa, page 55, sec. 20, pro- “ vides that “if the process by which the suit is commenced, should not “ be served upon the defendant, and a voluntary appearance be not enter- “ ed by him before the end of the term at which .the writ of attachment “ aforesaid was made returnable, immediately after such term the clerk “ who issued said writ shall make out an advertisement in which he “ shall state the names of the parties, the time when, from what court, “ and for what sum said writ of attachment issued, and that unless the “ defendant appear and plead before the next term of the' court judgment “ will be entered and the property so attached will be sold to satisfy the “ same.” It appears that immediately after the expiration of the February term, a notice was made out by the clerk to the defendants to appear at next term, &e. without mentioning the time at which the term would commence. No special term could, at the time of the publication of the notice be legally anticipated, because the steps to authorize any special term had not been taken. The Statute, page 129, sec. 8, provides that “whenever “ the judge of any of the Districts shall consider it necessary that a spe- “ eial term of the court should be held in any of the counties of his dis- “ trict for the trial of either criminal or civil causes he shall notify the “ sheriff of the said county of the same, and it shall be the duty of the “ sheriff to put up at each of the precincts in said county a notice of the “time when said court shall commence, at least three weeks previous to “ said special term.” If the notice had even been put up at the different precincts in the county at the time of publication of notice and three weeks had not elapsed from the time of such posting up, one of the es-sentíais to the creation of the special term did not exist, and the time of holding such term was not established. Therefore the notice could not contemplate or point to any term except a term known to the law at the time of such publication. We think that it was error to take judgment at the special term. This is the construction which the spirit of the law would seem to indicate — any other might operate great oppression and hardship to defendants. As to the second point presented by the bill of exceptions, we are of the opinion that as there was no personal service the judgment should have been in rem, and not in personam. The 24th section of the attachment law, (p. 56,) provides that the final judgment in this action shall be conclusive so far as regards the property attached. The 25th section authorizes a sale of the property attached to satisfy the plaintiffs demand, and the 26th section authorizes the institution of a new suit if the proceeds arising from the sale of the property attached be insufficient. These sections, together with the adjudications of courts upon similar questions warrant tfie conclusion that there was error in entering up the judgment in personam. The judgment below is reversed.