
    Bowden v. Hatcher.
    Though no court is actually held at the appearance term of a case duly served, the defendant can file his plea at the time appointed hy law for the court to convene, and he may file it as late as the following term ; and if judgment he rendered at the latter term, no plea having been filed or answer made, the judgment is not void, and cannot he attacked hy affidavit of illegality. The defendant has had his day in court, and at most the judgment is only irregular.
    May 15, 1889.
    Illegality. Practice. Pleadings. Judgments. Before Judge Harris. Meriwether superior court. August term, 1888.
    Reported in the decision.
    ' J. M. Terrell, for plaintiff in error.
    B. P. McLaughlin, contra.
    
   Bleckley, Chief Justice.

This was an affidavit of illegality founded on the fact that judgment was rendered at the first term of the court actually held after the suit was brought. The appearance tenn. of the case was February term, 1887 ; but for some reason that term of the court was not held, and no court actually sat in the county until August term of the same year. That was treated as the trial or judgment term of the case, and judgment was rendered accordingly. No exception was taken, but after execution was issued and levied, an affidavit of illegality was filed, making the question above indicated. The illegality was overruled and the fi. fa. ordered to proceed.

The party had his day in court- He was warned to appear and plead, and might have filed his -plea to the action at the appearance term, although the court was not held. True, the code, §8452, says, “Where the defendant has been served with petition and process as provided by this code, he shall appear at the court to which such process is made returnable, and on or before the last day of said court, shall make his defence in writing,” etc. But we think it would be a full compliance with this statute to file the plea or pleas in the clei’k’s office, and that the court need not be actually in session to render a plea so filed available. Moreover, a plea filed as late as the August term would have been available. Even had the case been treated as in default at that term, the default could have been opened. As far as appears, no plea was filed at any time. And even if it was error to render judgment at the August term, it was mere error, and we think the party should have taken advantage of it by bill of exceptions, or in some other mode. What we rule.is that the judgment was not void, so as to make an affidavit of illegality available in resisting the execution founded upon it. If there was a material defence, it should have been presented before the judgment was rendered, and the exercise of any diligence would have prevented the loss of such defence. The party has had his day in court, and there was no error in overruling his affidavit of illegality. Code, §3671. No complaint is made that there was any defect in the service of the declaration and process, either in point of time or otherwise.

Judgment affirmed.  