Hunt v. O'Neill

The opinion of the court was delivered by Depue, J. This application was' made upon several grounds— First. The judgment was entered in pursuance of section 105 of the Practice act, {Rev., p. 865,) in default of a plea within thirty days after service of a copy of the plaintiff’s declaration. ' By section 9 of the Ejectment act, it is enacted that, in the action of ejectment, the pleadings shall be filed within the time limited for filing the same in personal actions, and'that the practice and proceedings shall, in all respects, be in conformity with the practice in personal actions, so far as the same may be applicable, unless otherwise specially provided. Rev., p. 327. Section 105 of the Practice act applies to actions of ejectment; .and if a copy of the plaintiff’s declaration be served, the defendant must plead within thirty days after such service. The affidavit on file shows that a copy of the plaintiff’s declaration was served on the 18th of March, and judgment was not entered until thirty days after service. It is contended that the service was irregular, for the reason that the copy served contained no file-mark and did not have endorsed on it the date of service. It is sufficient to say that the Practice act requires the copy served to have an endorsement on it of a notice that, unless the defendant shall appear and file a plea or demurrer, within thirty days after the date of service, judgment will be entered against him, but does not require that the date of the filing of the declaration or of the service of the copy should appear in the notice. The endorsement on the copy served complied with the statute. Second. The plaintiff’s title is a defeasible title—subject to be defeated by redemption. A general judgment was entered in his favor. The defendant insists that a special judgment should have been entered. By the statute, provision is made for a special judgment only where the plaintiff’s title has [566] expired pending the suit. Rev., p. 332, § 43. The ground upon which the contention for a special judgment was made by the defendant, was that this judgment would conclude him as to the title in case he should redeem in the future. The section of the act (Rev., p. 332, § 44,) which makes a judgment in ejectment conclusive, relates only to the right of possession and the title to the premises as they existed at the termination of the suit. A judgment in ejectment will not conclude the defeated party as to a title or right of possession subsequently accruing. If the defendant shall exercise his power of redemption, he will thereby acquire a new title, and may recover in ejectment, in virtue of that new title, without regard to the judgment in the present suit. Hoboken Land and Improvement Co. v. Mayor of Hoboken, 7 Vroom 540; Burt v. Sternburgh, 4 Cow. 559; Barrows v. Kindred, 4 Wall. 399; Merryman v. Bourne, 9 Id. 592; Sedg. & Wait on Trial of Titles, § 541. Third. The judgment is entered with costs. A plaintiff is entitled to have his costs awarded to him in an ejectment suit on a judgment by default, where it appears, by the affidavit of service of the summons, that the defendant was in actual possession of the premises claimed, or some part thereof, at the time of such service. If it does not so appear, the plaintiff must recover his costs in the ejectment suit in an action for mesne profits, Rev., p. 333, § 50; Stewart v. C. & A. R. R. Co., 4 Vroom 115, 117. The affidavit, in this respect, is defective. The judgment as to costs is irregular, and to that extent should be set aside, with costs.