Forest v. Price

Depue, J. The plaintiff having died since judgment recovered, a scire facias was issued to revive the judgment in the name of his personal representatives. The scire facias >vas returned to the. present term duly served. No appearance having been entered by the defendant, application was made for judgment. The question of practice raised is, whether, for want of an appearance to the action, judgment can be taken at the term to which the scire facias is returnable, without declaration filed. By the practice of the Court of King’s Bench, if the writ was served by the sheriff, a rule was entered that the defendant appear. This rule was taken on the return day in actions by bill, or in actions by original on the quarto die post, and expired in four days, exclusive, an intervening Sunday not being reckoned. Before the expiration of this rule, the defendant either appeared or made default. In the latter case, the plaintiff was entitled to take judgment that execution be awarded. 2 Tidd 1163; 2 Arch. Prac. 98; Com. Dig. Pleader, 3 L. 8; 2 Saund. 72 x. The default, in case the defendant did not appear, being in not appearing to the writ, [178] judgment was awarded upon the writ without any pleadings. The form of the entry of a judgment for a default in not appearing, is given in Archbold’s Forms, 258, 440. But, if the defendant appeared, the plaintiff was required to declare, and the cause proceeded as in other cases. 2 Tidd 1164; 2 Saund. 72 y. A form of a declaration is given in Archbold’s Forms 443, and of the rule for judgment for want of a plea after appearance. Ib. 445. The practice in this court has been in conformity with the-practice of the King’s Bench. In Green v. Andrews, February Term, 1863, on a scire facias to revive a judgment in the-name of the personal representatives of a deceased plaintiff,, judgment was taken at the term to which the writ was returnable, without declaration filed. The rule for judgment recites-that, it appearing by the return of the sheriff that the writ was-duly served, and the defendant having failed to appear and show cause according to the command of the writ, and therein having made default; it is ordered, &c. In that case, the-writ was returnable on the 14th of March, and judgment was-signed on the 25th. In the more recent pase of Duncan v. Duncan, December Term, 1873, judgment was signed by default on the return day of the writ. In neither case was a. rule to appear entered. The rule to appear, like the four days’ rule on judgment» nisi, not being served, might well be disused. But we think the correct practice to be, to wait the four days after the return of the writ, and if the defendant does not appear during the four days, to enter judgment- at the expiration thereof for the default in not appearing. Order accordingly. Justices Bedle and Dalrimple concurred.