
    *Anderson v. Johnson & als.
    November Term, 1879,
    Richmond.
    1. Equity Jurisdiction — Absent Defendant —Affidavit.—In a suit in equity against an absent defendant to attach his property for the satisfaction of a debt, if it appears from the bill that the court has jurisdiction of the case, it is not necessary that the affidavit should state that the defendant has property in the county where the suit is brought, but it is sufficient if it states that he has property and effects in any county of the state.
    
      2. Same — Same —Same—Remedy.—If in such case the* affidavit is defective, the remedy is by motion to quash the attachment.
    3. Attachment Bond — Decree of Sale— Statute. — If it appears that a copy of the attachment was served on the defendant sixty days before a decree for the sale of the land, attached, the decree for the sale may be made without requiring the bond provided for in the statute. Code of 1873, ch. 148, § 24, p. 1015.
    4. Same — Certificate of Foreign Justice— Appeal and Error. — The certificate of M, describing himself as a justice of the peace of the county of B, in the state of Ohio, that P, a deputy sheriff of said county and state, had made oath before him, the said M. of a delivery to the defendant of a copy of the summons and attachment, not objected to in the court below, cannot be objected to in the appellate court.
    5. Foreign Attachment Suit — Rehearing— Statute. — Under the statute, Code 1873, ch. 148, § 27, a defendant in a foreign attachment suit may appear at any time pending the suit, and have the cause reheard, tendering security for the costs. And the proviso to the statute, which excepts from the operation of the act a case in which the defendant was served with a copy or the attachment or with process in the suit, issued more than sixty days before the date of the decree, only refers to such a service in the proceedings in the suit, and not to a service out of the suit and out of the state; and a service out of *th© suit and out of the state can have no greater effect than, if so great as, an order of publication duly posted and published.
    6. Attachment — Intervention — Right to Jury Trial. — Where persons claiming the property attached, or some interest in it, are admitted as parties' in the cause, their claim is to be tried by a jury empanneled for the purpose, as provided by the statute, Code of 1873, ch. 148, § 25; and it is error for the court to pass upon the claim without the intervention of a jury.
    7. Foreign Attachment Suit — Costs—Security. — Where, on the motion of the defendant in an attachment case, the plaintiff, who is a nonresident of the state, is ordered to give security for the costs of the suit within sixty days, and fails to do so, his bill should be dismissed; and it is error to proceed to hear and decide the cause.
    8. Same — Same—Same—Dismissal of Suit.— On reversing the decree and remanding the cause, the appellate court will not direct the suit to be dismissed at once for the failure of the plaintiff to give security for costs, but will direct that he be allowed a reasonable time to comply with the order.
    
      This case was argued at Staunton, but was decided at Richmond.
    This is an appeal from three decrees of the circuit court of Clarke county, made at the terms of said court in February, 1877, and May, 1S77 and 1878. and made in a cause in which the appellee, John 13. Johnson, was plaintiff, and the appellant, Thomas H. Anderson, was defendant.
    The cause was an attachment suit in chancery brought in the said court to recover a debt claimed to be due by a promissory note of the defendant, dated July 1, 1866, for the sum of eight hundred dollars, payable two years after date to the order of the plaintiff, for value received, with six per cent, interest from date. The defendant resided at the time of the institution of the suit in the county of Belmont, in the stale of Ohio; but was supposed to own a tract of land containing about sixty acres, lying wholly or partly in the said county of Clarke, in the state of Virginia. As the foundation of the suit, the plaintiff, by his attorney, on the day of the institution thereof — to wit: on *the 24th day of May, 1875 — filed in the clerk’s office of the said court a paper purporting to be an affidavit made by said plaintiff on the 7th day of September, 1874, before a justice of the peace of said county of Belmont, “that Thomas H. Anderson was indebted to him in the sum of $800, on note dated July 1st, 1866, with interest at six per cent, from date, credited June 16th, 18G8, by $387.95; that affiant believed he was justly entitled to recover in the suit the said sum of $800, with interest as aforesaid, subject to the credit aforesaid; that said debt was then justly due and unpaid, and that the defendant, Thomas H. Anderson, then was a non-resident of the state of Virginia, but had property and effects within the same.
    Annexed to the said affidavit was a certificate, purporting to be that of J. R. Mitchell, clerk of the court of common pleas, a court of record of said county of Belmont, in the state of Ohio, dated on the said 7th day of September, 1874, that Joseph P. Arnst, whose genuine signature appeared to the said affidavit, was at the time of signing the same an acting justice of the peace in and for said county, duly commissioned and qualified to administer oaths, &c., and that his official acts were entitled to full faith and credit. Affixed to said certificate was a seal purporting to be that of the said court.
    On filing the said affidavit and certificate —to wit: on the 24th day of May, 1875— the plaintiff sued out of the clerk’s office of the said circuit court of Clarke county, a summons against the defendant, to appear and answer a bill in chancery exhibited against him in the said court by the plaintiff.
    There was an “endorsement” on the said summons, to “attach the real estate of the within named defendant, Thomas Anderson, lying in Clarke county, Virginia” — describing it — “containing about sixty acres, and subject the same to the payment of the claim of the complainant, amounting” as aforesaid, “and the costs of this suit.” *The said summons, so endorsed, was returned by the sheriff to whom it was directed.
    “Executed June 7, 1875, at 11 o’clock A. M., by attaching the above mentioned real estate, belonging to the above named Thomas Anderson, described as above. Said Anderson is a non-resident.
    “John T. Crow, Sheriff.”
    In 1875 — June rules — the case was continued for bill and July rules; it was again continued for bill; and an order of publication was awarded against the defendant, a non-res-'dent of the state.
    On the 30th day of July. 1875, the plaintiff sued out another summons, which, with the attachment endorsed thereon, was similar to the one first issued as aforesaid, except the date and return day thereof. This second summons and attachment was placed in the hands of W. C. Cochran, sheriff of Belmont county, Ohio, who gave his receipt therefor, dated August 12, 1875; and on the same day authorized John H. Piper to serve the same, who accordingly delivered a copy thereof to the said Thomas Anderson in Belmont county, Ohio, on the 13th day of August, 1875, as appears by certificate annexed to the said return, purporting to be that of Benjamin Mackell, a justice of the peace of said county, that said Piper had made affidavit before him, the said justice, of such delivery of the said copy.
    At August rules, 1875, the cause was continued for bill, and for completion of publication against the non-resident defendant.
    At September rules, 1875, the bill and exhibit were filed; and the cause was continued for completion of the publication aforesaid; and at October rules, 1875, it was set for hearing.
    On the 20th day of October, 1875, the cause coming on *to be heard on the bill and exhibits filed therewith and said order of publication, was argued by counsel, whereupon the court decreed that the plaintiff recover of the defendant the sum of $800, with interest thereon from July 1st, 1866, subject to a credit for $387.95, of date June 16, 1868; and it appearing that the defendant had been served with a copy of the attachment in the cause more than sixty days before the rendition of said decree, it was further decreed that the sheriff of Clark county, expose to sale at public auction, in front of the court-house, after thirty days advertisement of the time and place thereof, in some convenient newspaper,'the land in the bill mentioned, and sell the same on the terms of one-fourth cash, the balance in one, two and three years, the deferred payments to be secured by good personal security and the title to be retained until the money is paid. The bonds to be returned by the sheriff to the court.
    On the 2d day of March, 1876, the defendant asked leave to file a plea in the cause, to which the plaintiff objected. The plea referred to was that of the act of limitations — to wit: that the promissory note sued on became due and payable more than five years before the institution of the suit.
    On the 31st day of May, 1876, the defead.ant appeared by his attorneys, and asked leave to file his petition, which was accordingly filed, and Samuel J. C. Moore and son (his attorneys) entered themselves as security for the costs of the said petitioner. And on motion of said defendant, Thos. H. Anderson, it was ordered that the complainant, who was suggested to be a non-resident of the state, give security for the costs within sixty days from the said date.
    The said petition of said Thomas H. anderson represented that he had a good defence to the claim of the plaintiff, a id that he then appeared and asked leave to make said defence, and that the proceedings in the cause might be reheard.
    *In 1877, at the February term of the court, John T. Crow, sheriff of the said county, returned to the said court a report of the sale made by him of the trace of land aforesaid under the decree made in the cause at the October term, 1875, as aforesaid, and recommended that the sale be not confirmed, as he did not consider the price at which it was made an adequate one.
    On the 21st day of February, 1877, the cause came on to be again heard upon the papers formerly read and the report of the sale of the land made by the sheriff as .aforesaid, and the motion of the plaintiff to set aside the order of May term, 1876, granting leave to the defendant Anderson to file his petition, alleging that he has a good defence to the plaintiff’s claim, and was argued by counsel. Whereupon, it was decreed that the said order of May term. 1876, be set aside; and for reasons appearing to the court, it refused its leave to file said petition. .
    And the court, being of opinion upon the said report of Crow, sheriff, that the land sold on the 14th day of December, 1875, to the plaintiff, John B. Johnson, was sold for an inadequate price, being less than three-fourths of its assessed value, it was further decreed and .ordered that said sale be not confirmed, and that said sheriff again expose said land to public sale on the terms prescribed in the order of sale of October term, 1875, and report his proceedings to the court.
    The said decree of the 21st day of February, 1877, is the first of the three decrees appealed from in this case.
    After the said decree was directed to be entered, a motion was submitted by J. W. Anderson, George W. Anderson, David E. Anderson and Eliza C. Jackson, for leave to file their petition, claiming the land attached in this cause; which motion was granted, and the petition accordingly filed. And Samuel J. C. Moore and son entered themselves as security for costs in said And it was ordered that so much of the decree as directed a sale *of the land be suspended until the further order of the court.
    The petitioners represented in their petition that they were purchasers of the land in controversy of the defendant for valuable consideration; that they made their contract of purchase of the defendant on the 5th day of May, 1873, prior to the institution of this suit; which contract never was admitted to record, as said petitioners were non-residents of the state, and did not know that under the provisions of the laws of said state such contracts could or should be admitted to record; that subsequent to said purchase they complied with its terms by paying the purchase money, and on the 22d day of January, 1876, a deed was executed, conveying said land to them; and that they were advised that their title to said land was good against said attaching creditor; and they prayed that the said land might be discharged from said attachment upon such terms, &c., and they might have general relief.
    The contract of sale and deed referred to in said petition were exhibited therewith.
    On the 26th day of May, 1877, the defendant, Thomas H. Anderson, personally appeared in court, and asked leave of the court to file his petition, together with a plea and answer in the case; to the filing of which the plaintiff objected. He represented in his petition that he had a good and legal defence to the claim of the plaintiff, to recover which this suit is brought; and he asked that the proceedings and decrees in the cause might be reheard, and that he might be permitted to make defence. He tendered as security for costs Samuel J. C. Moore and son, who were willing to become such security.
    On the 14th day of June, 1877, the cause came on to be again heard upon the papers formerly read, and the motion of the defendant Anderson, made at that term, to file his said petition, and the plaintiffs’ objection thereto. Whereupon, for reasons appearing to the court, leave to *file said petition was refused, and the cause was continued for a hearing of the same upon the petition of J. W. Anderson and others, filed at the February term, 1877, and upon the other matters in said record.
    The said decree of the 1st day of June, 1877, is the second of the three decrees appealed from in this case.
    On the 29th day of May, 1878, the cause came on to be again heard upon the papers formerly read, the petition of J. W. Anderson, George W. Anderson and Eliza C. Jackson, and the exhibits filed therewith, claiming the property attached in this cause, a duly certified copy of the lis pendens recorded at the institution of this suit, and the motion of the defendant, Thomas H. Anderson, to file his petition at this term; which petition is set out in the said decree, in which the said petitioner states substantially that a decree was rendered against him in said cause at October term. 1875, of said court; that he has since returned to and appeared openly in this state; that he has a good defence to the claim of complainant in this cause, which is — 1st, that he has paid said claim; 2d, that the statutes of limitations of this state and of the state of Ohio, where said contract was made, are, and were at the time of the institution of this suit, a complete bar to the action of complainant; that said petitioner, therefore, now appearing openlj^ in this state, prays that he may have leave to file this his petition in said cause; that the proceedings in said cause may be reheard, and that he may have leave to set up his said defences to the said action. He further says that a copy of the order before referred to in this cause has never been served upon him at the instance of the plaintiff.
    And the objection of the plaintiff to the filing of this petition was argued by counsel: upon consideration whereof, it was decreed that said objection be sustained, and leave was refused to file said petition. And the court, being of opinion that the plaintiff, as against the petitioners, *J. W. Anderson. G. W. Anderson, and al., claiming the land attached in this cause, is entitled to subject said land to the payment 'of his said claim, decreed that unless the defendants pay to the plaintiff the said claim, which is set out in the said decree, within thirty days from the rising of the court, then the said Sheriff Crow was directed again to expose said land to sale at public auction, on the terms prescribed in the said order of the 20th of October, 1875, and to report his proceedings to the court. Said defendant tendered S. J. C. Moore and son as security for costs upon said petition, offered to be filed by him as aforesaid.
    The said decree of the 29th day of May, 1878, is the third and last of said three decrees appealed from in this cause.
    The defendant applied to a judge of this court for an appeal from and supersedeas to the said three decrees; which was accordingly allowed and awarded.
    S. J. C. Moore, for the appellant.
    McDowell & Moore, for the appellees.
    
      
       Attachment. — The construction contained in the third headnote of the proviso to the statute, which excepts from the operation of ch. 148, 24, Code 1873, a case in which the defendant was served with a copy of the attachment or process in the 'suit, issued more than sixty days before the date of the decree, is followed in Smith & Wimsatt v. Chilton, etc., 77 Va. 538, citing the principaTcase.
    
    
      
       Failure to Object Below. — In Sims v. Tyrer, 96 Va. 7, it is said: "If the affidavit is not made, or, if made, is defective, this is ground for a motion to abate the attachment. This the appellant did not do, but appeared and defended the case on the merits. Having failed to make the objection in the court below, he cannot make it for the first time in the appellate court. Anderson v. Johnson, 32 Gratt. 558; and Fisher & Brother v. March, 26 Gratt. 765.”
    
   MONCURE, P.,

delivered the opinion of the court. After stating the case, he proceeded:

There are five assignments of error in the decrees appealed from in this case made in the petition for appeal, which will be examined and disposed of, so far as it may be deemed necessary or proper to do so, in the order in which they are made.

1. The first assignment of error is, the affidavit on which the attachment is based was defective.

The Code, ch. 148, § 1, page 1009, requires that the affidavit to be made for the purpose of obtaining an attachment on the institution of an action at law, shall, among *other things, state, that “affiant believes that the defendant has estate or debts due him within the county or corporation in which the suit is, or that he is sued with a defendant residing therein.” And § 11 of the same chapter, page 1011-12, requires that the affidavit be made for the purpose of obtaining an attachment on the institution of a suit in equity, may be according to the nature of the case, conforming as near as its nature will admit, to what is specified in previous sections; and such affidavit may be at the time or after the institution of the suit.”

The reason for requiring that the affidavit ill the former case shall state that affiant believes that the defendant has estate, &c., within the county, &c., in which the suit is. or that he is sued with a defendant residing therein, is to show that the court of law in which the action is brought has jurisdiction of the case. If it has, as it certainly has, when the defendant against whom the attachment issued either has estate in the county in which he is sued, or issued with a defendant residing therein; then-the attachment, whether it be sued out in an action at law or suit in equity, may (except where it is sued out specially against specified property) be levied upon any estate, real or personal, of the defendant, or so much thereof as is sufficient, &c., whether the same be in the county, &c., where the suit is, or in any other, &c., § 7, p. 1010. If it appear from a bill in equity that the court in. which the suit is brought has jurisdiction of the case, as it certainly does in this case, then the affidavit on which an attachment, is issued in the case need not state that the property on which it is to be levied is situate in the county, &c., in which the suit is. brought, but may state that it is situate in and county of the state. § 7, supra.

If the affidavit had been defective in this case, the remedy for the defect would have been by a motion to quash the attachment. There was no such motion in this case, though the defendant appeared and offered to defend himself in the suit upon the merits.

*The court is therefore of opinion, that there is no error in the decrees appealed from in respect to the matter of the first assignment of error.

2. The second assignment of error is, that the decree of the 20th day of October, 1875. for the sale of the property is erroneous, in that it failed to require an attachment bond, as directed by the Code of 1873, ch. 148, § 24, page 1015.

The said section provides, that if the defendant against whom the claim is has not appeared or been served with a copy of the attachment sixty days before such decree, the plaintiff shall not have the benefit of the preceding section (providing for a sale of the property attached), unless or until he shall have given bond “with sufficient security,” &c., “with condition to perform such future order as may be made upon the appearance of the said defendant and his making defence. If the plaintiff-fail to give such bond in a reasonable time, the court shall dispose of the estate attached, or the proceeds thereof, as to it shall seem just.”

The certificate of Benjamin Mackall, if it. be regarded as evidence, certainly shows that a copy of the attachment was served upon the defendant more than sixty days before the said decree. The attachment consisted of the said summons and the endorsement thereon. And as the defendant was served with a copy, not only of the said summons, but also of the endorsement thereon, he was served with a copy of the said attachment sixty days before said decree.

. But must we not regard the said certificate as evidence, at least in the appellate court, as no exception was taken to it as. such in the court below, though the defendant appeared in person and by attorney in the court below and offered to defend himself therein on the merits in the said suit?

We are of opinion that we must; and we are therefore of opinion that there is no error in the decrees appealed from in respect to the matter of the second assignment of error.

*3. The third assignment of error is, that “the circuit court erred in refusing to permit thq defendant to make defence, as .he asked in his three several petitions.”

By § 27 of ch. 148, of the Code, p. 1015, it is enacted, that “if a defendant against whom, on publication, judgment or decree is rendered under any such attachment, or his personal representative, shall return to or appear openly in this state, he may, with-:m one year after a copy of such judgment or decree shall be served on him at the instance of the plaintiff, or within five years from the date of the decree or judgment, if “he be not so served,, petition to have the proceedings reheard. One giving security for costs, he shall be admitted to make defence against such judgment or decree as if he had appeared in the case before the same was rendered, except,” &c. “But this section shall not apply to any case in which the petitioner or his decedent was served with a copy of the attachment, or with process in the suit wherein it issued more than sixty days before the date of the judgment or decree, or to any case in which he appeared and made defence.”

On the 20th day of October, 1875, the decree aforesaid was rendered under the attachment aforeasid against the defendant therein on publication. And thereafter, before there was an effectual sale under the said decree — to wit: on the 26th day of May, 1877 — the said defendant, Thos. H. Anderson, personally appeared in court — to wit: the court in which the decree was rendered as aforesaid - — and asked leave of the said court to file his petition in writing, together with a plea and answer; to the filing of which petition, plea and answer the plaintiff objected. Inthesaid petition, the said defendant represented that he had a good and valid defence to the claim ?nd of the plaintiff against him, to recover which the said suit was brought; asked that the proceedings' and decrees in the cause might be reheard, and that he might be permitted to make defence; and tendered as security for costs Samuel J. C. Moore and *son, who were willing to become such security. Afterwards, during the ■same term — to wit: on the 1st day of June, 1877 — the cause came on to be again heard on the papers formerly read and the said motion of the defendant Anderson, made at the same term, to file the said petition, and the plaintiff’s objection thereto: whereupon, for reasons appearing to the court, leave to file said petition was refused. And thereafter, during a subsequent term — to wit: on the 29th day of May, 1878 — the cause came on again to be heard upon the papers formerly read, &c.; the said defendant Anderson again presented his petition to the said court in the said cause, stating in substance, among other things, “that a decree was rendered against him in said cause at October term, 1875, of said court; that petitioner has since returned to and appeared openly in this state; that he has a good defence to the claim of the plaintiff in this cause; which is, 1st, that he has paid said claim; 2d, that the statutes of limitations of this state and of the state of Ohio, where said contract was made, are, and were at the time of the institution of this said suit, a complete bar to the action of the plaintiff. Your petitioner therefore now appearing openly in this state, prays that he may have leave to file this his petition in said cause; that the proceedings in said cause may be reheard, and that- he' may have leave to set up his said defences to the said action.” And the said defendant tendered S. J. C. Moore and son as security for cost upon his said petition. And the objection of the plaintiff to the filing of said petition was argued by counsel; upon consideration whereof it was decreed that the said objection be sustained and leave to file said petition was refused.

Now it is very clear, that the defendant had a right to appear personally in the said cause in the said court and make his defence therein, as proposed in his said petition, under the said 27th section of ch. 148, of the Code, page 1015. unless he was deprived of that right by the concluding ^portion of that section, which declares: “But this section shall not apply to any case in which the petitioner, or his decedent, wal served with a copy of the attachment, or with process in the suit wherein it issued more than sixty days before the date of the judgment or decree, or to any case in which he appeared and made defence.” The court is of opinion, that the said portion of the said section has no such effect; that the service “with a copy of the attachment or with process in the suit,” therein mentioned, refers to such a service in the proceedings in the suit, and not to a service out of the suit and out of the state; that a service out of the state and out of the suit can have no greater effect than, if so great as, “an order of publication duly posted and published (Code 1873, ch. 166, § 15, page 1087). If then he had a right to make defence after a decree entered upon an order of publication (as he surely had) how could that right be impaired by the alleged service in Ohio? This language is used in the petition for the appeal in this case and seems to be correct.

The court is therefore of opinion, that the circuit court erred in refusing to permit the defendant to make defence as he asked in his petitions as aforesaid.

4. The fourth assignment of error is, that “the circuit court erred in overruling the petition of J. W. Anderson and others, the purchasers of the land attached, who had acquired an interest therein and an equitable title thereto, before the attachment was sued out.”

By § 25 of ch. 148, of the Code, page 1015, it is enacted, that “any person may file his petition at any time before the property attached as the estate of a defendant is sold, or the proceeds of the sale paid to the plaintiff under the decree or judgment, disputing the validity of the plaintiff’s attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and its nature, and upon giving ’^security ior costs, the court, without any other pleading, shall empanel a jury to enquire into such claim, and if it be found that the petitioner has title to, or a lien on, or any interest in, such property or its proceeds, the court shall make such order as is necessary to protect his rights; the costs of which enquiry shall be paid by either party, at the discretion of the court.”

J. W. Anderson, George W. Anderson, David R. Anderson and Eliza C. Jackson, filed their petition by leave of the court, in the said cause, before the proceeds of sale of the said land were disposed of under a decree of the court in the said cause — to wit: at February term of said court, 1877— in which petition they represented, in substance, that they were purchasers for valuable consideration of the tract of land attached in this cause; that they purchased it before the institution of this suit, and were advised their title to it was good against the claim of the attaching creditor. They exhibited with their petition the contract of sale to them from the defendant, dated the 5th day of May, 1873, for said laud, which never was admitted to record in Clarke county, Virginia; and as they were non-residents of the state, they did not kno-w (as they stated in their petition) that under any provisions of the laws of said state such contracts could or should be admitted to record. They further represented, that subsequent to said purchase, they complied with its terms by paying the purchase money, and on the 22d day of January, 1876, a deed was executed conveying said land to them, which deed was also exhibited with said petition. They said they were .advised that their title to said land is good against said attaching creditor, and they prayed for special and general relief against the same.

Samuel J. C. Moore and son entered themselves as security for costs in said petition; and the contract of sale and deed for the land, referred to in the partition, were exhibited therewith; and it was or-ordered that so much of the ^decree rendered in the cause as directed a sale of the land lie suspended until the further order of the court.

On the 29th day of May, 1878, the cause came on to be again heard upon the papers formerly read, the petition of J. W. Anderson, George W. Anderson and Eliza C. Jackson, and the exhibits filed therewith, claiming the property attached in this cause, &c. And the court, being of opinion that-the complainant, as against the petitioners, J. W. Anderson, G. W. Anderson and al., claiming the land attached in this cause, is entitled to subject said land to the payment of their said debt, decreed that unless payment should be made within thirty days oi the rising of the court of the debt and interest due by the defendant to the plaintiff as aforesaid, then the sheriff should make sale of the said land, in the manner and on the terms aforesaid, and report the same to the court.

The court is of opinion that the circuit court erred in disposing of the case as it did in regard to the said petition without tile-intervention of a jury, but that instead of doing so, the said circuit court, as directed by section 25 of chapter 148 of the Code as. aforesaid, should, upon the petitioners giving security for costs, and without any other-pleading, have empanelled a jury to enquireinto such claim; and if it had been found that the petitioners had title to such property the court should have made such order as was necessary to protect their rights.

5. The fifth assignment of error is, that “the circuit court erred in entering any decree for the complainant after his non-residence has been suggested and security for cost required.” On the 31st day of May, 1876, on the motion of the defendant, it was ordered that the complainant, who was suggested to be a non-resident of this state, give security for the costs within sixty days from that date. The Code (p. 1161, § 2, ch. 181) provides that “after sixty days from such suggestion,” the suit shall, by order of the court, be dismissed, unless, before the dismission, the plaintiff *be proved to be a resident of the state, or security be given before said court or the clerk thereof for the payment of the costs and damages which may be awarded to the defendant, and for the fees due, or to become due, in such suit to the officers of the court.”

Although more than sixty days elapsed after such suggestion, and the plaintiff was not proved to be a resident of this state, nor was security given before said court, or the clerk thereof, for the payment of the costs, &c., as aforesaid, yet the suit was not, by-order of the said court, dismissed; but, on the contrary, the court proceeded further in the case until the decree of the 29th day of May, 1878, was entered for the sale of the said land for the payment of the claim of the plaintiff, unless payment thereof should be made within thirty days from the rising of the said court.

The court is of opinion that the circuit court erred in regard to the matter of the said 5th and last assignment of error.

The court is therefore of opinion that so much of the decrees appealed from in this case as are inconsistent with the foregoing opinion are erroneous, and ought to be reversed and annulled, and that the residue thereof is not erroneous, and ought to be affirmed; and that the cause ought to be remanded to the said circuit court for further proceedings to be had therein, in conformity with the said opinion.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the decrees appealed from are erroneous on the grounds taken in the 3d, 4th and 5th assignments of error in the petition for the appeal in this case: but are not erroneous on the grounds taken in the 1st and 2nd assignments of error in said petition, or either of them, or any other ground.

*In regard to the 3d assignment of error, that “the circuit court erred in refusing to permit the defendant to make defence as he asked in his three several petitions;” this court is of opinion that, as stated in the said petition for the appeal, “when petitioner appeared openly in the state and petitioned to have the cause reheard, tendering security for the costs, he had a right to be admitted to make defence, against the action as if he had appeared in the cause before the decree was rendered. (Code 1873, ch. 148, § 27, p. 1015.)”

In regard to the 4th assignment of error, that “the circuit court erred in overruling the petition of J. W. Anderson and others, the purchasers of the land attached, who had acquired an interest therein and an equitable title thereto, before the attachment was sued out.” This court is of opinion that the said petition having been filed by leave of the said circuit court in this cause before the proceeds of the sale of the said land were disposed of under a decree of the court in the said cause, disputing the validity of the plaintiff’s attachment thereon and stating a claim thereto, or an interest in or lien on the same, and its nature, and giving security for costs, in compliance with the requisitions of the 25th section of chapter 148 of the Code of 1873, page 1015,.the said circuit court erred in not impanelling a jury, without any other pleading, to enquire into the said claim; and if found that the said petitioners had title to or a lien or any interest in said land or its proceeds, making such order as might have been necessary to protect the rights of said petitioners, according to the directions of the said 25th section; and instead of doing so, in deciding, without the intervention of a jury, that the plaintiff, as against the said petitioners, claiming the land attached in this cause, is entitled to subject the same to the payment of the claim for which it is so attached.

In regard to the 5th assignment of error, that “the circuit court erred in entering any décree for complainant *after his non-residence has been suggested and security for costs required.” On the 31st day of May, 1876, on the motion of the defendant, it was ordered that the complainant, who was suggested to be a non-resident of this state, give security for the costs within sixty days from that date. The Code, p. 1161, § 2, ch. 181, provides that “after sixty days from such suggestion, the suit shall, by order of the court, be dismissed, unless, before the dismission, the plaintiff be proved to be a resident of the state, or security be given before said court, or the clerk thereof, for the payment of the costs and damages which may be awarded to the defendant, and for the fees due, or to become due, in such suit to the officers of the court.” Although more than sixty days elapsed after such suggestion, and the plaintiff was not proved to be a resident of the state, nor was security given before said court, or the clerk thereof, for the payment of the costs, &c., as aforesaid, yet the suit was Hot, by order of the said court, dismissed, but,on the contrary, the court proceeded further in the case until the decree of the 29th day of May, 1878, was entered for the sale of the said land for the payment of the claim of the plaintiff, unless payment thereof should be made within thirty days from the rising of the said court.

Therefore it is decreed that the decrees appealed from be reversed and annulled so far as they are hereinbefore declared to be erroneous, and be affirmed so far as they are hereinbefore declared not to be erroneous; and that the cause be remanded to the said circuit court for further proceedings to be had therein to a final decree in conformity with the .foregoing opinion and decree.

But the suit shall not be dismissed on account of the failure to give security before said court, or the clerk thereof, for the payment of the costs and damages which may be awarded to the defendant, and for the fees due, or to become due, in such suit to the officers of the court, as aforesaid, unless such failure .shall continue to exist after *the expiration of a reasonable time which shall be afforded by order of the said court for giving such security.

And it is further decreed and ordered that the appellee pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here.

Which is ordered to be certified to the said court of Clarke county.

Decree reversed.  