Sledge v. Doe ex dem. Swift

B. F. SAFFOLD, J. The purpose of the consent rule is to get rid of the fictitious parties, and to confine the issue to the title only. The tenant in possession, or his landlord, if he wishes to appear and defend, must enter into the consent rule. If he refuses to do so, the plaintiff takes judgment against the casual ejector, and is then entitled to a writ of possession. By the terms of the consent rule, the party applying consents to be made defendant in place of the casual ejector; to appear at the suit of the plaintiff; to receive a declaration in ejectment, [387] and plead not guilty ; and, at the trial of the issue, to confess lease, entry, and ouster, and insist upon the title only; that if, at the trial, the party appearing shall not confess lease, entry, and ouster, whereby the plaintiff shall not be able farther to prosecute his suit, such party shall pay costs to the plaintiff; and that, if a verdict shall be given for the defendant, or the plaintiff shall not further prosecute his suit, for any other cause than for not confessing lease, entry, and ouster, the lessor of the plaintiff shall pay costs to the defendant. It was usual for the consent rule to ascertain the premises in the possession of the defendant. When this was not done, the plaintiff had to prove the defendant in possession of the premises for which the ejectment was brought. The 24th rule of practice for the circuit court is a literal copy of the English rule (R. M. 1 Geo. 4th, K. B.), requiring the defendant to specify additionally for what premises he intends to defend, and to confess upon the trial that he, or his tenant, as the case may be, was, at the time of the service of the declaration, in the possession of such premises. This rule operates as a notice of the premises for which the tenant means to defend, and supersedes the necessity of the plaintiff’s proving him in possession of them at the trial. The plaintiff takes judgment against the casual ejector, for such part not particularly specified in the consent rule. In the present case, the proper practice would have been, to ignore the pleas put in by the defendant, on his refusal to comply with the 24th rule, and render judgment against the casual ejector, as upon the default of the tenant or landlord in not appearing. The appellee was not entitled to any judgment against the appellant for the premises, nor was the latter entitled to costs against the other. The judgment is reversed, and the cause remanded.