Hemken v. Farmer

Martin, J. The defendant and appellant has placed this suit before us, on a bill of exceptions and an assignment of errors. The defendant moved for a dismissal of the suit, and on the refusal of the judge below took a bill of exceptions. The bill states : First. That the copy of the citation served on him did not contain the name of the judge of the court, from which it was issued. Second. That it was not a true copy of the original citation. In the copy of the citation the name of the judge was not written at full length, although it was so in the original, E. H. Wilson being written in the latter, and E. H. Will in the former. It does not appear to us that the judge erred. The Code of Practice, art. 179, contains an enumeration of all that is required to constitute a legal citation, and no mention is made therein of the necessity of its containing the name of the judge of the court from which it is issued. As this name, therefore, need not have been inserted in the original citation, the omission, or mis-spelling of it in the copy, ought not to be fatal. The errors assigned are : First, That it does not appear that any judgment by default was taken, nor, if taken, on what day. Second, That it does not appear that three judicial days elapsed between' such judgment and the time of its being made final. [156] Third, That the ground on which a judgment by default was taken is not stated, nor the evidence upon which it was made final. The defendant having moved that the judgment by default taken against him should be set aside, on the ground that the citation to him was not in due form, cannot be listened to when he urges that no judgment by default was taken. The law does not require that the grounds upon which a judgment by default was taken, should be stated in the record. The absence of any exception or answer in the record, is itself a sufficient and evident ground for such a judgment. The record contains the evidence on which the judgment by default was made final; but the defendant and appellant’s counsel urges, that as the record does not state that the evidence was taken down at the request of either party, it must be considered as if it had not been taken down. This is certainly a non sequitur. Judgment affirmed.