
    LOWE v. ECHOLS & RICHARDS.
    Where the plaintiff in an attachment case, conceiving that his declaration was insufficient to authorize the rendition in his favor of a general judgment against the defendant, voluntarily-amended the declaration so as to make its sufficiency in this respect unequivocal, and thereupon th-ei defendant, under leave of the court, filed a plea to the jurisdiction, to which no exception appears to have been taken, and the case proceeded to trial, it was error, after the rendition of a verdict in favor of the defendant sustaining the plea to the jurisdiction, to grant a new trial and strike this plea, on the ground that the plaintiff’s , declaration really needed no amendment, and that, consequently, allowing the defendant to file the plea to the jurisdiction was erroneous because it was offered too late.
    December 2, 1895.
    
      Attachment. Before Judge Van Epps. City court of Atlanta. January term, 1895.
    On September 2, 1893, Echols & Richards sued out an attachment in Fulton county against Mrs. A. J. Lowe, the affidavit in attachment alleging that she was indebted to them $400 principal, with interest at eight per cent, per annum from May 15, 1893, on $200, and interest from August 12, 1892, on $200 at eight per cent., and-per cent, on the principal and interest for attorney’s fees, and that “said Mrs. A. J. Lowe is actually removing without the limits of said county of Fulton.” The attachment bond was in the sum of $800. Neither the attachment, bond, nor affidavit stated that Mrs. Lowe resided in or was a citizen of Fulton county. The attachment was made returnable to the November term, 1893, of the city court of Atlanta. On September 4, 1893, defendant gave bond and replevied the property attached. On November 30, 1893, and during the first term of the court, plaintiffs filed their declaration and prayed for a “judgment for his. said debt and for the sale of the property levied upon as aforesaid, and that the proceeds arising from the sale be applied to the satisfaction and payment of said debt.” This declaration did not aver that Mrs. Lowe was of said county of Fulton or a citizen thereof. At said first term L. R. Ray, as attorney for the defendant, marked his name on the docket opposite her name. No defense in writing was filed to the suit at the first term. The appearance docket was not called at that term. At the March team, 1894, April 6, 1894, the court, at the instance of plaintiff’s, counsel, gave judgment, as a case in default, against defendant and the sureties on her replevy bond. The case was not then in default. This was done without notice to defendant and before the case was reached in its order. The court did not turn to the docket at or before the signing of said judgment. Had he done so, the marking of the name of defendants’ counsel would have been discovered, and tbe court would have refused to sign judgment by default. The judgment was. not entered upon tbe minutes, nor was tbe case stricken from tbe docket. On April 9, 1894, defendant filed ber plea to tbe jurisdiction, “because at the time of tbe commencement of said suit, this defendant resided in tbe county of Harris in said State, and not in tbe county of Fulton,' and tbe superior court of Hams county has jurisdiction of said case.” On September 15, 1894, tbe case was called in its order and set for trial. At tbe trial plaintiff’s counsel announced he bad judgment, and it was so entered on tbe docket. On September 21, 1894, defendant filed ber motion to set aside tbe judgment of April 6, 1894, on various grounds, but tbe only one pressed upon tbe attention of tbe court was: “Because said case was taken up out of its order on tbe docket, without notice to tbe defendant, and judgment rendered by tbe court, April 6, 1894, in tbe absence of defendant and ber counsel, whose name was marked on tbe docket, when in its regular order said case would not bave been reached by tbe court until September 15, 1894. Tbe delay in filing this motion was caused from tbe fact that defendants bad no legal notice of tbe rendition of said judgment until tbe same was called for trial on September 19, 1894, three days before the filing of this motion, when plaintiff’s counsel stated in open court be bad judgment.” It was also alleged in tbe motion to set aside, that defendent had a good defense which was fully set forth in ber plea to tbe jurisdiction; that said plea could not bave been filed earlier, because she was seriously ill from December —, 1893, to April Y, 1894, and could give no attention to business; and that plaintiffs took the judgment against defendant and tbe sureties on ber replevy bond without first recovering judgment in their attachment case as provided in §3319 of tbe code. The motion was granted on tbe ground that tbe case was not in default, but that the marking of tbe name of defendants’ counsel to the bench docket was tantamount to •the filing of tbe plea of the general issue, and bad'the effect to carry the case to the jury.
    The case coming on for trial on Jánuary 18, 1895; de-fendant moved to dismiss the attachment because the grounds were not sworn to positively, inasmuch as it did not .appear from any of the papers in the case, the affidavit, bond, attachment or declaration, that defendant was at the time or ever had been a citizen of Fulton county; and be•causé there was nothing in the attachment papers from which the officer who issued the attachment could determine what court or county he should mate the same returnable to. Defendant’s counsel then presented a plea to the jurisdiction, which the court refused to entertain, on the ground that it came too late, a plea of the general issue having'been filed at the first term and subsequently insisted •on as such, and which had the effect to delay the case for a number of intervening terms. Plaintiffs, by permission of the court, amended their attachment affidavit so as to mate ■it read, “Mrs. A. J. Lowe of said county of Fulton.” Plaintiffs were also allowed to amend their declaration in .attachment, so as to broaden the prayer to the asking of a .general judgment. Defendant’s counsel thereupon again presented their plea to the jurisdiction, and asked that it be entertained. The court held that, plaintiffs having .amended their declaration in a material part praying for a .general judgment, whereas before only a judgment in rem was embraced in the prayer, the pleading rights of the defendant attached de novo in view of tins amendment.
    Defendant further moved to dismiss the attachment, because the attachment bond was not in an amount at least ■double the debt sworn to. This motion was overruled, and defendant excepted.
    Pnder the instructions of the court, the jury foirnd for ■defendant upon her plea to the jurisdiction; whereupon the •court passed an order dismissing the case. Plaintiffs moved for a new trial, to set aside the verdict, and to set aside tbe 'judgment allowing the plea to the jurisdiction to be made a part of tire record. These motions were argued, and considered as oné. The motion for new trial was-granted, as well as the motion to strike the plea/ the court holding that it was satisfied that it committed error in allowing the plea to the jurisdiction to be filed, and consequently erred in the procedure subsequent to the allowance of that plea. The court states: “The reason for the present decision is, that the prayer of the original declaration in attachment was broad enough to include, without any amendment, a claim for a general judgment, the woi*ds being, ‘Wherefore, your petitioner prays judgment for his-said debt, and/ etc. The amendment to tire prayer offered by the plaintiffs and allowed was purely formal, and in a sense wholly surplusage. The court erred in holding that the filing of this amendment opened the pleading rights do novo to the defendant.” To this decision defendant excepted. She also excepted because the court at the trial dismissed her plea to the jurisdiction, filed April 9, 1894, on the ground that it was not filed at the first term, that the marking of her counsel’s name upon the docket was an appearance and pleading to the merits; and she therefore admitted the jurisdiction of the court.
    
      Lavender R. Ray, for plaintiff in error.
    
      Konlz & Oonyers, contra.
   Atkinson, Justice.

The official report states accurately the facts as they appear in the record, and therefore a restatement of them here will not be necessary in the consideration of the questions made.

It will be seen that although an attachment had issued upon the ground that “said Mrs. A. J. Lowe is actually removing without the limits of said county of Eulton,” there was no averment either in the affidavit upon which such attachment issued or in the declaration subsequently filed, nor any recital in the bond given or in the writ of attachment, suggesting either that the defendant was a citizen of Fulton county, or that the city court of Atlanta had jurisdiction of her person, or that for any other reason sufficient in law such attachment proceeding was properly returnable to that court. Whether or not the case was in default, or whether the marking of defendant’s counsel would be a sufficient appearance to prevent the case being in default, need not be considered, inasmuch as the court discharged the defendant’s default, and permitted her to make a motion to dismiss the proceeding because it did not appear that the court had jurisdiction of the case, or of the defendant’s person. When this motion was made, it was met by an amendment of the affidavit in attachment, stating the residence of the defendant in the county of Fulton, and thereupon conferring upon the court jurisdiction of the cause. This fact being thereby for the first time issuably pleaded, the court did not err in permitting the defendant to file a plea to the jurisdiction. The marking of defendant’s counsel is not necessarily such a pleading to the merits as waives the question as to the jurisdiction of the court. An appearance is necessary to a motion to dismiss the suit, and if made for that purpose, ought not to, and does not, so admit jurisdiction as to preclude the defendant from filing his defense in abatement. Potts v. Cox, 67 Ga. 521, 526, 527. Nor does the fact that upon such an appearance the court set aside a judgment by default erroneously rendered, malee it a plea to the merits'Such as waives jurisdiction. When the defendant answered by marking her counsel’s name on the docket, she acquitted herself of all default. An answer of that character may not be effective for all purposes, but it is sufficient to require the court at the trial to hear and determine motions which are predicated upon defects appearing upon the face of the pleadings, and the absence of an averment of jurisdiction is such a defect. We do not think, therefore, that when the court set aside the judgment by default, it thereby adjudged that the defendant could not be heard on the motion to dismiss for the want of jurisdiction; and when this motion was met by an amendment averring jurisdiction, the defendant should have been allowed to file a plea to the jurisdiction which answered this amendment.

The allowance of the amendment broadening the prayer of the attachment declaration so- as to authorize the grant of a general judgment, might not have had the effect of opening tire pleadings so as to admit the plea to the jurisdiction. Yet, the other amendment averring jurisdiction did have this effect; and although the trial judge may have put his judgment allowing the plea upon the first rather than upon the last mentioned amendment, we do not think that for this reason tire defendant should be deprived of her right to make this defense. Both amendments were> according to the plaintiff, at the time they were offered substantial, and after a finding in favor of the defendant upon her plea to the jurisdiction, we think the court erred in setting aside the judgment and granting a new trial, upon the sole ground that the plaintiff’s declaration was good without amendment, and that as a consequence the amendments offered were not sufficiently substantial to justify the allowance of the plea to the jurisdiction.

Judgment reversed.  