Green v. Hallowell

Burnside, J. The first error assigned is, to the court entering judgment against Robert B. Green, for want of a plea. It is true that in assumpsit against several, if some are served with process and appear and plead to issue, and some who are served malie default, the plaintiff takes judgment by default against the latter: Ridgely v. Dobson, 3 W. & S. 118. But in such case the judgment must be taken in accordance with the rules of court. Here a rule was obtained at September Term, 1846, to plead. On the 26th December, 1846, on motion judgment against Robert B. Green for the sum of $131.25, for want of a plea. The rule of court is, that “ a rule to make defence or plea at least twenty days before the next preceding term is of course, and on failure of the defendant so doing, the plaintiff may, in like manner, within twenty days, enter a second rule to make defence, or plead,” &c. The plaintiff had no right to have a judgment until after his general rule. The second error assigned is, to the court entering judgment against R. B. Green for $131.25, on motion, without the aid of a jury to assess the damages, it being an action of assumpsit. In this case there had been a rule of defence under the compul [54] sory arbitration act, and an award for plaintiff for $ 131.25. Tbe judgment was only entered for the amount of the award. In such a case we all think there was no error. When a cause is referred and the award appealed from, and the defendant declines to plead, a judgment may be taken, in accordance with the rules of court, by default, for the amount of the award, without a writ of inquiry of damages. ’ ' The judgment is reversed, and procedendo awarded.