State ex rel. Bouldin v. Steibel

Miller, J., delivered the opinion of the Court. The motion to dismiss is overruled. No appeal lies from an order striking out a judgment tendered at the same term, but in this case the order struck out not only the final judgment extending the judgment by default, but the latter judgment also which was rendered at the preceding term. In such case an appeal lies, but brings up for review only the action of the Court in striking out the judgment by default.

The suit was instituted upon a guardian’s bond, and judgment by default rendered under the 5th section of ³⁷ the Act of 1864, ch. 6. By the 8th section of this law, the plaintiff is not entitled to judgment under either of the three preceding sections, unless at the time of bringing his action he shall file with his declaration an affidavit or affirmation stating the true amount that the defendant is indebted to him over and above all discounts, and shall also file the bond, bill of exchange, promissory note, or other writing or account by which the defendant is so indebted. This provision is substantially the same as that of the attachment law in section 4, Article 10 of the Code. It is not fully settled by the decisions upon what claims an attachment may issue, but where unliquidated damages,