Iglehart v. Pitcher

Scates, C. J. A default being entered in the court below, for want of a plea, the only question we deem it necessary to notice is, whether it be necessary to show service of a copy of the declaration and rule to plead, to sustain the default. We are of opinion that the statute of 1853, regulating the practice in these courts, does not require nor intend to make the service of these copies a part of the record, any more than the copies of the instruments or accounts sued on. They must be incorporated into the record by bill of exceptions. Their mere absence from the record cannot, therefore, be taken as evidence that they were not served, and can raise no presumption against the correctness and validity of the judgment. Every reasonable intendment will be made in support of the judgments of courts of general jurisdiction. We not only presume in their support due notices and rules, to support the default—for it is the act and order of the court, and not of the plaintiff—but we will also presume that the plaintiff produced, and the court heard, sufficient evidence to sustain the finding and judgment thereon. The assignment of error in this case seems to proceed upon the assumption that a default is erroneous, not only if taken without giving copies, but unless the fact of service of them affirmatively appear in the record. But we do not think this view supported by the provisions of the act. Proof of the rule to plead, and the service of copies, need not appear, any more than rules to plead under the old practice, with the copy of the instrument; and I am not aware that this was ever considered necessary to be shown by any practice on the circuits, or decision of this court. It might be otherwise, and placed upon a different and stronger reason, were the plaintiff entitled, as at common law, to enter up his own order for default, at the clerk’s office in vacation, without the intervention of the court. Judgment will be affirmed. Judgment affirmed.