
    James E. Bosbyshell vs. Morris Emanuel et al.
    Whether it is in the power of the circuit court to set aside on motion a judgment rendered at one of its former terms, on the ground that such judgment is void.— Query ?
    
    Whether after appearance, and plea to an attachment at law, and a judgment rendered against the defendant, the circuit court can at a subsequent term for defects in the attachment, which had they been taken advantage of in the proper time, might have occasioned the quashal of the attachment, set aside the judgment thus rendered, on the ground that it is void, under that clause of the attachment law, which enacts that every attachment issued without bond and affidavit, shall be illegal and void.— Query?
    
    An affidavit to procure an attachment in behalf of a partnership, made by one member of the firm, will not be objectionable, because the affidavit itself does not state his interest, if the other parts of the record show that he was one of the partners. /
    An affidavit to procure an attachment, which states that “ the defendant hath removed or is removing out of the state, or so absconds or privately conceals himself, that the ordinary process of the law cannot be served upon him,” is not defective.
    A bond given by the plaintiff in an attachment which provides only for such costs and damages as might be recovered against the plaintiff in a suit to be thereafter brought, complies with the form prescribed by the statute, and will be sufficient.
    In error from the circuit court of Warren county; Hon. George Coalter, judge.
    On -the 11th day of March, 1840, Morris Emanuel made affidavit before E. R. Warren, a justice of the peace, that James E. Bosbyshell was indebted to Emanuel & Barrett in the sum of $742-36; and that the said “James E. Bosbyshell hath removed, or is removing, out of the state of Mississippi, or so absconds or privately conceals himself, that the ordinary process of the law cannot be served on him,” and prayed an attachment. An attachment bond was given by Morris Emanuel and Richards Barrett, as principals, and Thomas C. Randolph, as surety, with the following condition: “Now, if the said Emanuel & Barrett shall prosecute their said suit with effect, or in case they fail therein, shall well and truly pay and satisfy the said James E. Bosbyshell all such costs and damages as shall be awarded against the said Emanuel & Barrett, their heirs, executors or administrators, in any suit or suits which may be hereafter brought for wrongfully suing out the said attachment; then the above obligation shall be void, otherwise to remain in full force and virtue.”
    The attachment was issued, levied, and an appearance bond taken. At the return term, Bosbyshell appeared, pleaded, and on the 21st of May, 1841, withdrew his plea, and a judgment was rendered against him by default for $811-23; an execution issued thereon to the October term, 1841, and was returned nulla bona.
    
    At the April term, 1847, of the same court, Bosbyshell, having served a notice in writing of the motion on Emanuel & Barrett, moved to quash the attachment, to set aside the judgment, dismiss the suit, and vacate all the proceedings, because, as appeared by the record, all the proceedings had in the cause were illegal and void.
    The court overruled the motion; Bosbyshell excepted, and sued out this writ.
    
      A. J. Paxton, for plaintiff in error.
    The attachment proceedings above cited were irregular and void, and should have been so declared and vacated, for the following reasons.
    1. The affidavit does not show that the defendant was indebted to Morris Emanuel, by whom the affidavit was made. It shows an indebtedness to Emanuel & Barrett, but it does not appear that the affiant had any interest in or an agency for that firm.
    2. The affidavit is in the alternative, showing more distinctly than any thing else that the affiant knew but little or nothing as to the matter about which he deposed. The statute provides for four distinct cases in which an attachment may issue. This is neither one nor another, but takes a chance at them all, inconsistent as they are with each other. In the case of Commercial Bank v. Tillman, 10 S. & M. 411, a fair construction of the affidavit made it set out only one of the several cases, and if construed as setting out two in the alternative, they were nevertheless consistent. The point here made is decided -in the cases of Wade v. Judge, 5 Ala. R. (new series) 130; Shipp v. Davis, Hardin, R. 65 ; and the view now presented fully sustained.
    3. The bond is defective in providing only for costs and damages to be recovered in suits thereafter to be brought for wrongfully suing out the attachment, making no provision whatever for the payment of the costs which should be awarded to the defendant in the suit then instituted in case the plaintiff failed. The statute H. & H. Dig. 549, is explicit on this point.
    4. If either of the points above made is sustained, then the whole proceeding is void, H. &. H. Dig. 549; and it was the duty of the circuit court of Warren county, no matter how or when the case might have come before it, so to have declared and vacated and set aside all the proceedings. Neither the appearance of the party, nor any lapse of time, could make the proceedings valid. Tyson v. Hamer, 2 How. ■ 669; Page v. Ford, 2 S &. M. 266; Ford v. Woodward, lb. 260; 4 lb. 683; 4 lb. 538; 2 Yerg. R. 241, 242.
    
      Smedes and Marshall, for defendants in error.
    A court has no power to set aside its judgments after the term at which they are rendered. Me Comb v. Filed, 8 S. & M. 505.
    2. Admitting the affidavit was defective, and the judgment absolutely void, as contended by the counsel of plaintiff in error, the court could not have sustained the motions, because they came too late. No valid execution, we admit, could in that case be issued on the judgment; it would be a nullity, and all persons acting under it would be trespassers. Yet that did not authorize the circuit court to set it aside. The case of Tyson v. Hamer & Richards, 2 How. 669, relied upon by the counsel of plaintiff in error, does not, however, at all sustain their position. On the contrary, we think it a clear authority in favor of the judgment of the court below. In that case there was neither an affidavit nor bond to justify and support the attachment. A motion to quash was made before a plea was filed, and the case taken to this court in due' time, and it was held that a judgment without affidavit and bond was void. But a merely defective or irregular affidavit would "be cured by the appearance and plea of the defendant to the merits.
    We insist the affidavit was a substantial compliance with the statute. See the Commercial Rank of Manchester v. Tillman et al., 10 S. & M. 411.
    
      Paxton, in reply.
    The case of Me Comb v. Ellett, 8 S. & M. 505, cited for the defendants in error, does not deny that a void judgment may be set aside at a subsequent term; but, on the contrary, reaffirms the doctrine asserted in the case of Buckingham v. Bailey, 4 S. & M. 538, and in 2 Yerg. 241, that if a judgmenf or other proceeding be void, the court should so declare and vacate it at any time when assailed by the party to whose prejudice the proceeding has been had, upon notice to the other party, as in this case.
   Mr. Justice Clayton

delivered the opinion of the court.

In March, 1840, Emanuel & Barrett sued out an attachment against the plaintiff in error, who, at the succeeding court, appeared, gave bond and pleaded to the action. In May, 1841, judgment was rendered against him for $811'23.

At the April term, 1847, the plaintiff in error caused a motion to be made in the court below to quash the judgment and all the previous proceedings, upon the ground that they were irregular and void.

It is objected to this motion, that after the term of the court has elapsed, at which a judgment is rendered, the court has no power to set it aside. This is the rule wherever a judgment is only erroneous; but if it be void, then the court may set it aside at any time. Buckingham v. Bailey, 4 S. & M. 538. But this has been regarded as doubtful upon motion. Bank U. S. v. Moss, 6 How. S. C. R. 31. The question then arises whether the judgment was void.

The statute directs that every attachment issued without bond and affidavit shall be illegal and void; but it also directs that no-attachment shall be abated for want of form, if the essential matters be expressed.

The first objection to the affidavit is, that it does not show that the person who made it had any interest in the suit, or was an agent of the parties. The affidavit was made by Morris Emanuel, and the other parts of the record show that he was a member of the firm.

The next objection is, that the affidavit is too broad in this, that it states that the defendant hath removed, or is removing, out of the state, or so absconds or privately conceals himself, that the ordinary process of the law cannot be served upon him.” Now the plaintiff might very well know that the defendant could not be served with process without, knowing whether he had removed, or absconded, or concealed himself. He swears to the4 fact, that the process could not be executed, in consequence of one of these causes. The material point in the affidavit required by the statute is, that the ordinary process cannot be served. We think the affidavit was good.

The objection to the bond is, that it provides only for costs and damages to be recovered in a suit, to be thereafter brought.” Upon comparing this bond with the form prescribed in the statute, it will be seen that it complies strictly with its provisions. See Amos v. Allnutt, 2 S. & M. 218.

So far from thinking that the judgment in this case is void, we believe the attachment would have been sustained, if the motion to quash had been made at the term to which it was returned. It would require a much stronger showing to set aside the judgment, rendered after appearance and plea to the merits by the defendant.

Judgment affirmed.  