
    Lewisburg.
    Hickam v. Larkey.
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. A defendant in an action at law not having entered his appearance either at rules or in term, has a right, on the calling of the cause, to object that it has not been legally matured for trial.
    2. In considering such objection all the process, returns and proceedings are necessarily parts of the record, and are to be looked into.
    3. A writ which purports to be a pluries capias, but which is without date, and is not attested by the clerk, is wholly null and void as process ; and an order based thereon directing a proclamation to issue, and all the subsequent proceedings, are without warrant and illegal.
    
    This was an action of trespass on the case in the Circuit court of Scott county, by John Larkey against Edley Hickam. The original and alias capias were regularly issued, and returned “ not found;" and then a 
      pluries capias issued, which was blank as to its date, and was not signed by the clerk. This also was returned “not found;” and then the plaintiff proceeded against the defendant by proclamation; and the cause was thus matured, and there was an office judgment and writ of enquiry.
    When the cause was called for trial, the defendant by counsel moved the Court for leave to appear and move to quash the pluries capias and the return thereon, and the subsequent proceedings, without entering his appearance to the action. But the Court held that the defendant could not through his counsel make this or any other motion in the cause, unless he appeared and gave bail, if ruled so to do by the Court: That the process in the cause and the manner of its execution is not necessarily a part of the record until made so by some legal means: That the Court could not on the motion of the defendant’s counsel, look at it, or know any thing about it, until he appeared; and therefore without deciding whether the process was regular and sufficient or not, that the Court could legally know nothing about it until the defendant appeared and legally brought it to the notice of the Court. To this opinion of the Court the defendant by his counsel excepted. The writ of enquiry was then executed, and the jury assessed the plaintiff’s damages at 300 dollars ; and the Court rendered a judgment accordingly. W hereupon the defendant applied to this Court for a supersedeas, which was awarded.
    
      Logan, for the appellant.
    There was no counsel for the appellee.
    
      
       1 Rev. Code, ch. 128, § 64. “ On the return of the pluries, that the defendant is not found, the Court instead of the process to outlawry formerly used, may order a proclamation to issue, warning the defendant to appear on a certain day therein named, or that judgment will be rendered against him; which proclamation shall be published on three successive Court 'days, at the door of the courthouse of the county or corporation, to which the last process was directed, and also three times in some public newspaper; and if the defendant fails to appear pursuant to such proclamation, the same proceedings shall be had, and the same judgment shall be given, as in other cases of default.”
    
   Daniel, J.

delivered the opinion of the Court.

The Court is of opinion, that the Circuit court erred in deciding that the plaintiff in error had no right, when the cause was called for trial, to make a motion through his counsel to quash the process for irregularity, unless he appeared, and gave bail, if ruled so to do by the Court. Wynn v. Wyatt's adm'x, 11 Leigh 584. The Court is also further of opinion, that the Circuit court erred in deciding that the process in the cause, and the manner of its execution, was not necessarily a part of the record, and that the Court could not on the motion of defendant’s counsel, look at it or know any thing about it until the defendant appeared; and in refusing therefore to decide upon the sufficiency and regularity of the process. The plaintiff in error having entered no appearance either at the rules or in term, had a right on the calling of the cause, to object that it was not legally matured for trial; and in considering the objection, all the process, returns and proceedings were necessarily parts of the record. On an inspection of the process, it appears that the paper, which the Circuit court in its order of the 14th April 1846, treated as a pluries capias, though in other respects formal, is without date and without signature, and does not “bear teste in the name of the clerk.” The said paper was therefore wholly null and void as process, and the said order of the 14th April 1846, directing a proclamation to issue, and all the subsequent proceedings, were without warrant and illegal. 1 Rev. Code, ch. 128, § 64. The judgment of the Circuit court is therefore reversed, with costs. And this Court proceeding to render such judgment as the Circuit court ought to have rendered, doth quash the said pretended process and return; and doth adjudge that all proceedings subsequent to the. suing out and return of the alias capias be set aside. And the cause is remanded for further proceeding.  