
    Gates, Plaintiff in Error, vs. Clavadetscher, Defendant in Error.
    1. The attachment law of 1845, and not the new code, governs as to the publication of notice to non-resident defendants in attachment suits.
    2. No finding of facts is necessary upon an inquiry of damages after a judgment by default.
    
      jError to St. Louis Court of Common Pleas.
    
    Gates brought suit by attachment on an open account against Clavadetscher, returnable to the September term, 1852. The sheriff returned that Clavadetscher was not found. At the September term, tbe plaintiff took tbe usual order for publication of notice, to be made according to law. At the February-term, 1858, tbe plaintiff took judgment for want of an answer, and submitted the case for proof of his damages to tbe court. Tbe court found in bis favor a large amount of damages, but filed no decision in writing. At tbe same term, tbe defendant moved to set asido the judgment for irregularity, and in support of tbe motion, showed in evidence that; tbe order of notice was, in fact, published five weeks only, and that tbe judgment was rendered on proof of such publication only. Tbe court below overruled the motion, and tbe defendant below excepted.
    
      R. M. Field, for plaintiff in error.
    
      Comfort 8' Manter, for defendant in error.
   Ryland, Judge,

delivered tbe opinion of tbe court.

The only point in this case calling for tbe opinion of tbe court, is in relation to tbe time of publication of tbe notice. Tbe statute of 1845, concerning attachments, is still in force ; tbe manner of giving notice, what tbe notice shall contain, tbe manner of giving publicity in some newspaper printed in this state, tbe last insertion to be not less than four weeks before tbe first day of tbe next term, &c.; all these things must still be adhered to in attachment cases. Why should eight weeks publication be required ? Why retain most of tbe provisions of the attachment law of 1845, set forth in sections 14, 15 and 16, in article 1, and yet reject the four weeks’ publication, and in lieu of this provision, take tbe publication required in tbe new general practice act of eight weeks ? Tbe practice act requires publication of notice to non-resident, absent or unknown defendants to be made for eight weeks successively, tbe last insertion to be four weeks before tbe commencement of tbe term, and it provides that suits may be brought by attachment, in the cases, and conducted in tbe manner authorized by statute in such cases, provided that the pleadings and procedure shall be, as near as may be, according to tbe provisions of this act, that is, the proceedings in the courts, so far as the mode is concerned. The practice act has had the tendency to increase suits and costs enough already among litigants, and this court is not disposed to increase the costs of giving notice in attachment suits, by doubling the length of the publication in a newspaper. We do not think the general practice law of 1849 was designed to affect the provisions in the attachment law of 1845, any further than to alter the pleadings. The plaintiff is to sue by petition, and the defendant to answer, and then the mode of carrying on the case before the courts is to be, as near as may be, in conformity to that act. This point is valid against the defendant below.

The second point is also for the plaintiff below. The' court is not required to find the facts, and preserve them by filing them in writing with the clerk, in cases where judgments by default have been rendered. It is only where an issue of facts has been referred to the court by the parties, that the facts must be found.

The judgment below is affirmed,

the other judges concurring.  