Sally v. Gooden

COLLIER, C. J. The act of 1837, “to regulate certain judicial proceedings,” enacts that the plaintiff shall file a declaration within the two first days of the term, where the court, is by law, holden for one week only; that the defendant shall plead or demur in two days thereafter; and if any other pleadings shall be necessary, the same shall be severally and successively filed within two days each, until an issue of fact, or law be made up. The act provides further, that the ¡ileadings shall be made up' during the term, unless further time be given by the court; that if plaintiff fail to carry on the pleadings on his part, the suit shall be dismissed, or a non pross. entered on motion of the defendant— if the failure is on thd part of the defendant, the plaintiff shall be entitled to a judgment by default. The statute “ to abolish attorneys fees in certain cases ” passed in 1839, provides, that in all suits instituted for the purpose of col lecting money, no judgment shall be entered at the appearance80 term for the failure of the defendant to^appear and plead; that the defendant shall be compelled to plead to the merits within the first week of the appearance term, and upon failure thereof “forfeit his, her, or their right to make any defence thereafter.” It is not pretended that the first act interferes with, or abridges the discretionary power of the primary court to permit the parties to plead at any-time, or even to set aside a judgment or grant a new trial with a view to amend the pleadings. But it is insisted, that the act of 1839 is imperative in its terms, and must be enforced, although in some cases it may operate great injustice. The great object of that statute as indicated by the third section, which absolves the defendant from the payment of a tax fee, where no defence is made, is to cheapen the administration of justice, by dispensing with the services of an attorney in such causes. Its provisions seem to be framed with a view to that end. The language of the second section, which declares the defendant’s right to make defence, forfeited, where he has omitted to plead to the merits within the first week of the appearance term, is express, and if literally interpreted, is decisive of the case at bar. But the subject matter of the statute, the pre-existing laws and rules of Court regulating the practice in this respect, all seem to us to require such a construction to be given to the act, as will not divest the Court of all discretion as to the time of pleading. Suppose it should so happen that it was utterly impracticable from sickness of the defendant or his attorney, or from other causes alike uncontrollable, to plead within the time prescribed, if the Court in which the suit was pending could not interfere, chancery, if the defence was meritorious, would afford redress, as the act does not restrain that tribunal. To prevent litigation, so protracted and expensive, we think the spirit of the statute would be promoted, by the court of law doing directly, that which could be thus circuitously effected. If a judgment may be set aside in any case, so as to let in a plea by the defendant, a revising court can fix no limitation to the cases in which the same thing may be done; but the primary court must exercise a general discretion over the subject, in advancement of the end of justice. A permission to plead should not be given where the defendant has forfeited the right, unless he shows prima facie a meritorious defence, and a sufficient excuse for his neglect; but of this, the [81] Court in which the suit is bought, must be the final judge. [See Smith v. Saxton, 6 Pick. Rep. 483; Lessee of Burgett v. Burgett, 1 Ohio Rep. 469.] In respect to the declarations of the nominal plaintiff, if they had been made after she parted with her interest in the specialty sued on, they should have been rejected as incompetent evidence. But for any thing appearing to the contrary, the conversations between herself and the witness, adduced by the defendant, were most probably made while she was the proprietor of the paper. In the absence of all proof to this point, the evidence was such as the jury should have been allowed to consider, under the instructions of the Court. In Brown, use, &c. v. Foster, (at the last term,) it was held, that as it did not appear when the nominal plaintiff transferred his interest, his declarations, made before suit brought, were admissible. [See also, Chisholm, use, v. Newton & Wiley, 1 Ala. Rep. N. S. 371; Copeland & Lane, use, &c. v. Clark, 2 Ala. Rep. 388.] The argument of the plaintiff’s counsel, that in the absence of proof, it must be intended that the beneficial plaintiff became entitled to the paper before its maturity, is not well founded where a transfer of title is not passed in the ordinary course of business; however the law may be in case of an indorsement. [See Marston v. Forwood, at this term.] This view is decisive to show, that the case is free from error; and it is consequently affirmed.