Hollis v. Herzberg Bros.

McCLELLAN, C. J. The certificate of the clerk shows that the record before us “contains a full and complete transcript of the record and proceedings” of the circuit court on the scire facias of Herzberg Bros, against Hollis. The record does not show that there had been any continuance of the scire facias proceedings at the term of court prior to that at which the judgment of revivor now appealed from was rendered. The certificate must, therefore, be taken as negativing any such continuance; and in the face of it we cannot presume for the purpose of supporting the judgment of revivor that the scire facias had been returned to and continued at the preceding- term so as to authorize a judgment by default on the. first day of the 'current term. And the presumption that a scire facias had been issued, executed and returned to the preceding term would avail nothing in this connection unless the cause had been continued at that term. So then this record presents a case of a judgment by default taken on the first day of the term at which the scvre facias was returned. The rule allows the defendant in such cases the first two days in which to plead; and its last clause cannot be construed so as to deny this right without entire practical emasculation of the rule itself. That clause, is in these words: * * * “but either party may demand a trial, at the return term although the court may not continue in session three days.” The true construction of this provision is, in our opinion, that when the court lias been in session [477] two days, or is in session on tlie second day, and the defendant has thus had an opportunity of pleading on the second day, the court may -then, if it is not to be in session longer than the two days — if it is “not to continue in session three days” — retpiire the parties at. the instance of either of them to fully make up the issues on that day and proceed to trial, instead of giving force to the other provision of the rule to the effect that plaintiff may have the third day to reply or demur to defendant’s plea and defendant may have the foui*th day to rejoin or demur to plaintiff’s replication, and. so on. Thus construed the last clause of the rule is no warrant for a judgment by default on the first day of the term, even though the court “may not continue in session three days.” Bo that the. indulgence of the presumption-¡that the circuit court did not continue in session three days would not support the judgment rendered by default on the first day. Our conclusion, therefore, is that it affirmatively appears by the record before us that the trial court • erred in rendering judgment of revivor by default on the first day of the term. Reversed and remanded.