
    Florence J. Alexander v. Jasper E. Porter et al.
    [41 South. Rep., 6.]
    1. Attachment. Judgment by default. Return term. Publication.
    
    A judgment by default in an attachment at law against a nonresident is utterly void if rendered at the return term oh proof of publication only.
    2. Same. Supreme court. Practice.
    
    The supreme court will not affirm a judgment void upon its face because appellant sought relief in the court belpw and failed to point out its fatal infirmity.
    From the circuit court of Pike county.
    Hon. Moyse H. Wilkinson, Judge.
    Porter and others, the appellees, were plaintiffs in the court below; Mrs. Alexander, the appellant, was defendant there. From a formal judgment in plaintiffs’ favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.
    
      R. ~W. Gutrer, for appellant.
    A judgment by default, entered at the return term, on constructive service, will not be permitted to stand, when the statute says: “Judgment by default shall not be entered at the return term unless it appear that the process has been served personally on the defendant.”
    
      Code 1892, § 722. The statute is peremptory, and its plain mandate cannot be avoided or evaded.
    Code 1892, § 143, says how publication for nonresident defendant shall be made, and that unless the defendant appear on the first day of the next succeeding term of the court and plead to said action judgment will be entered, and the estate attached will be sold. In this case appellant, by her attorney, appeared at the return term and asked leave to plead, which was denied.
    The judgment entered by default on constructive service at the return term is void. Betts v. Baxter, 58 Miss., 329; Heiman v. Strickland, 60 Miss., 234; Moore v. Hoskins, 66 Miss., 429 (s.c., 6 South. Rep., 500).
    
      H. 7. Wall, for appellees.
    Several days after judgment had been taken, appellant, by her attorney, made a motion to set aside the judgment taken by default, and set out as a reason that defendant, or appellant, was quarantined in Louisiana and out of the state of Mississippi, and that she did not owe this amount.
    No affidavit accompanied this motion, and there was absolutely no proof offered of the alleged facts. This motion was overruled by the court below.
    Counsel abandons the proposition that his client was quarantined out of the state of Mississippi when he goes to file his brief in this case, and goes off on the proposition that the .judgment by default was wrongfully rendered at the return term on publication only. The proposition cannot be raised in this court for the first time. This question is so well settled in this state that I will not cite authorities.
   Mayes, L,

delivered the opinion of the court.

.The record in this case shows that the judgment entered by the ’ circuit court, is a void judgment. Suit was commenced in July, 1905, by an attachment against Mrs. Alexander, she being a nonresident at the time. Publication was duly made requiring her to appear at tbe September term, 1905, and at tbe September term, 1905, judgment by default was rendered against tbe defendant on tbis constructive service. On tbe motion to set aside tbe judgment in tbe lower court tbe invalidity of tbe judgment was not assigned as one of tbe reasons wby tbe court should vacate tbe judgment, and tbis point is made for tbe first time bere. While it is true that tbis court has decided that it will not take notice of any objection which is urged for tbe first time in tbe supreme court, yet it will not affirm a judgment void on its face, when appealed to tbis court, even though tbis objection was not made in tbe lower court. There is no judgment for tbis court to affirm. Tbe suit is merely a pending suit in tbe lower court.

The cause is reversed and remanded.  