On the 28th day of February, 1878, John R. Magruder was arrested for a debt of $1,306, by the sheriff of Grant county on a capias ad respondendum sued out by Bernard Weisl, and gave bond for his appearance at the district court of said county on the first day of the July term thereof, to answer said suit.
On the second day of said term, Conway and Risque, attorneys for defendant, offered to enter the appearance of' defendant for the purpose of traversing the affidavit and pleading to the declaration. The defendant not appearing in person the court refused to allow said defendant to appear by attorney ; judgment by default was rendered against him, his bond forfeited and $1,306 damages assessed against him by a jury and judgment rendered; other proceedings were subsequently had which are of no importance to the determination of this case. The case was brought into this court by appeal.
The first error assigned involves the construction to be given to act of Eeb. 15, 1878, relating to practice in the district courts. The court are not agreed as to the construction to be given to that act, and such construction is not necessary to the decision of this case.
All of the other errors assigned follow from the second, which is as follows:
The court erred in refusing to permit defendant to appear by attorney and deny the truth of the affidavit and plead to the merits of the suit.
The defendant was not required by the statute to do anything until the second day of the term, and on that day he had as much right to appeal’ by attorney in this as in any other case. He was only bound by law to render himself in custody to abide the judgment, order or decree of the court*
The fact that while under arrest he was required to give and did give bond for more than the law required did not change his legal rights.
The refusal of the court to permit him to appear by attorney and traverse the truth of the affidavit on which he was arrested and plead to the declaration, was error.
For -this error the judgment is reversed, and the case remanded to the court below for a néw trial.