Cook v. Skelton

Walker, J. This was an action of assumpsit brought by Timothy J. Skelton against Isaac Cook, in the Cook Circuit Court, on the assignment of a note by Cook to Skelton. The declaration averred due diligence and a failure to collect the money of the makers. The suit was brought to the June special term, 1857; service was had, and appellant failing to plead, judgment was rendered by default against him, at that term, on the 24th day of the month, and the court assessed damages at the sum of $1,639.39, and rendered judgment against the appellant. . On the 16th day of July, 1857, and during said term, the court set aside the assessment and judgment, and after hearing the evidence, the court assessed the appellee’s damages at the sum of $1,644.20, and rendered judgment on the assessment against appellant. The record shows that the court adjourned on the 13th day of July, 1857, till the 16th, and no court was held on the 14th and 15th days of the month. In this case the appellant insists that the record does not show that the court was legally and regularly organized. The record shows that the court convened on the 22nd day of June, “ in pursuance of the order of the judge of said court, heretofore made and entered of record.” From this order it does appear that the term had been ordered by the judge of the court, and as the statute has empowered him to call a special term of court in vacation, and it being a court of general jurisdiction, the presumption would bo, from this recital, that the law had been complied with, or the judge would not have proceeded to hold the term. It was again urged that it was irregular for the court to adjourn over two days, and that all the proceedings had after it again convened were void. The custom has always prevailed of adjourning from day to day, and for such other short periods as the convenience of the court and the dispatch of business might require, and such power, so far as we are able to find, has never been questioned. This power, of course, should be confined in its exercise, to reasonable times, but must, to a great extent, be left to the sound discretion of the court, acting with a view to the dispatch of business and the administration of justice. The adjournment in this case was not error. The default admitted every material allegation in the plaintiff’s declaration, and left nothing but the assessment of damages open to be determined. When the court came to assess the damages, the only issue it could then try was, the amount of damages in the case, and any other issue was not before the court. The indebtedness was admitted, but the amount had to be ascertained by the inquiry. The defendant, on the execution of a writ of inquiry, has no right to give any evidence which would defeat the action, but only such as tends to reduce the damages. 1 Tidd’s Prac. 523. All the evidence in this case relating to the solvency of the makers of the note, their residence, and questions as to the use of diligence, was not properly before the court below, and we of course decline its discussion here. There appears to have been no mistake in the assessment of the amount of damages in this case, and the assessment appears to be regular in other respects. Upon a careful examination of the whole record, no error is perceived, and the judgment of the Circuit Court should be affirmed. Judgment affirmed.