Sloan v. Forse

McBride, J., delivered the opinion of the Court. Jeremiah Forse instituted his action of assumpsit in the Circuit Court of St. Louis county against Edward C. Sloan, by attachment. The declaration consists of one count for freight for the transportation of lead from Galena, Ill., to St. Louis. The defendant not having been personally served with process, nor appearing to the action, an order of publication was made at the return term of the writ. At the subsequent term the plaintiff proved the publication of notice as required by the order of court, and moved for a judgment by default against the defendant; which was entered, and an enquiry of damages awarded to the same term. A few days after the judgment by default was taken and before the assessment of damages, the defendant appeared in court and moved the court to set aside the judgment by default, assigning a variety of reasons, but his motion was overruled and he excepted. The assessment of damages having been made the defendant again filed a motion setting out a number of reasons for setting aside the judgment, the assessment, and the judgment by default, which being again overruled by the court, he excepted and took an appeal to this court. We have not deemed it necessary to make a more detailed statement of the case, under the view which we entertain of the statute regulating the recovery of debts by attachment, It. C., 1845, p. 1S2. This proceeding may be regarded as the offspring of necessity, and not to be resorted to except in cases enumerated in the first section of the act. In its inception it is a proceeding in rem and contemplates either the impossibility of serving process on the defendant, or a fraudulent disposition by him of his property so as to hinder or delay his creditors. The publication required by the fourteenth section of the act, R. C.5 1845, p. 137, is intended to notify the defendant of the institution of a suit [129] against him, and to procure his personal appearance to the action. If he does not appear and answer the action, judgment by default may be entered against him, and proceeded on to.final judgment in like manner as though he was served with process; except that the judgment thus rendered, shall bind only the property attached. The objection taken in the court below, and mainly relied upon in this Court, is thatthe order of publication was not in conformity to the requisites of the act. The order is a general one couched in the usual form, notifying the defendant “that an action of assumpsit for the sum of $403, 70, has been commenced against him; that his property has been attached and unless he appear at the next term of this Court, to be begun and held at the city of St. Louis, on the third Monday of November next, and on .or before the third day thereof, plead to the action aforesaid according to law, a judgment will be rendered against him, and his property be sold to satisfy the same.” This form of notice is believed to be the general form adopted by the several courts of the State, under the statute above referred to, and which provision was introduced into our laws as early as the revision of 1825, see R. C., 1825, sec. 5, p. 146. The statute uses the phraseology “the court shall order a publication to be made stating the nature and amount of the plaintiffs demand,” &c., which it is contended is not done in this case, and that the omission cannot receive any sanction from long established practice. We think differently. The omission to state that which the party seems here to desire, is at most not the omission of any material part of the information intended to be communicated to the defendant by the order of publication. The primary object is to inform the defendant that a suit has been instituted against him and his property attached; receiving this information he will most unquestionably enquire at the office of the clerk of the Circuit Court, and there ascertain “the nature and amount of the demand,” but should he not do so, and sustáin any damage by reason of his failure to take the necessary steps to inform himself, the fault will be his own. A uniform practice of twenty years under the statute, should not be disturbed without very cogent reasons. We have said that the object of the publication was to obtain jurisdiction of the person of the defendant; and that an exparte proceeding is only tolerated, because process could riot be personally served upon the defendant. This object is further manifested by reference to the fifty-first and following sections of the statute, which gives to the defendant three years after judgment by default, to appear and disprove or avoid the debt or damages, adjudged against him, which is done by a petition to the [130] Circuit Court, in which the judgment was rendered,, setting forth the grounds of the application, and serving the plaintiff with a copy fifteen days before the date of the application. If the petition deny the cause of action and is sworn to, the plaintiff shall be required to prove the same, and in default thereof it shall be adjudged that the debt and damages are disproved and avoided. If the petition be not verified by oath, or if it allege a set off, or other collateral avoidance of the original cause of action, the petitioner shall be required to prove his allegations, and on his failure to do so, his petition shall he dismissed, and the original judgment shall stand absolute; and if any part thereof remain unpaid, a general judgment shall be rendered therefor against him. When the statute gives the defendant three years to come forward ira the manner above pointed out, and disprove or avoid the judgment, we are of opinion that the Circuit Court should, upon the application of the defendant made at the same term at which the judgment by default was taken, and before an assessment of damages was had, have set aside th© default, and permitted the defendant to enter his appearance and plead to the action. Judgments by default when set aside are so done upon terms; and in setting aside judgments by default, the court would of course see that no advantage was obtained of the plaintiff, and that no unnecessary delay would he occasioned thereby. This course would in our opinion be most consonant to the interest of the parties and facilitate tine speedy administration of justice. For the foregoing reasons the judgment should be reversed, and Judge Scott concurring, the judgment is reversed and the cause remanded. Naptom, J., dissents.