Perret & Gally v. Keill

Morphy, J., delivered the opinion of the court. This suit commenced by attachment. The petitioners state that pursuant to previous arrangements, they purchased and shipped for Europe a large quantity of cotton : one-third for account of Keill & Courant, a mercantile firm trading in Liverpool; one-third for account of Francis Courant & Co., trading in Havre; and one-third for their own account. That by agreement among the parties, they were to draw bills of exchange against said shipments, upon the aforesaid firms, who were to accepi and pay the same; that they did accordingly draw on said firms for the price of the cotton they forwarded to them, but that on the presentation of said bills, the firms of Keill & Courant, and F. Óourant & Co., refused to accept them, and‘said that they would not pay their amount at maturity, although said firms had received said shipments of cotton. The petitioners further aver, that from all the information they have received, they verily believe there is or will be a loss on said cotton of fifty thousand dollars, or thereabouts; and that for two-thirds of said sum, the firms aforesaid are bound and liable to them. An attorney was appointed to represent the absent defendants, who does not appear to have filed any answer to the plaintiffs’ petition. Notwith 212 standing this, the petitioners proceeded to have auditors appointed, on the ground that there were long and intricate accounts between the parties to be investigated. Fouv days after taking their oath, we find the auditors reporting the 0 / , i accounts submitted to them by plaintiffs, as correct, and conformable to commercial rules, and stating that they believe, to the best of their knowledge, that the sum of nine thousand seven hundred and eighty-three dollars and seventy-eight cents (the balance of the accounts current presented by plaintiffs,) is due them by Keill & Courant. As to F. Courant & Co., the attachment appears to have been discontinued by the plaintiffs, before the reference to auditors had been ordered. No opposition having been made to this report, it was homologated; and on a rule taken on the garnishees, the latter were decreed to pay over to plaintiffs the funds attached in their hands, to an amount sufficient to satisfy their claim. It is from both these decrees that the present appeal has been taken. The loose and irregular manner in which all these proceedings have been carried on, has enabled the appellants to place their case before us on a long assignment of error, apparent on the face of the record. We shall not notice all the grounds assumed, although several appear to us well founded, because the view we ^ave ta-ken of one, renders this unnecessary. It is assigned, that no answer having been filed, no reference or arbitration ° could be had in the cause. This we think is fatal. Without a coniestatio litis, in a judgment by default, all subsequent Proceec^DSs must be considered as irregular and void. The petition itself is so Vague and insufficient, in setting forth the indebtedness of the defendants, that it might with propriety ^ave k®en dismissed; but as on a new trial it might be amended, we have thought it best to remand the case for further proceedings. Without an answer filed, or judgment by default, no reference, or order of submission to arbitrators, can be made in a cause ; and such a submission may be assigned as error. Where there is no coniestatio litis, or judgment by default, all the subsequent proceedings are irregular and void. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court appealed from be annulled, avoided and reversed; and that this case be remanded to said court, to be proceeded in according to law ; the plaintiffs and. appellees paying the costs of this appeal.