Hatto v. Brooks

Fisher, J., delivered the opinion of the court. This was an action of replevin, brought by the plaintiffs below, to the November Term, 1854, of the Circuit Court of Rankin county. It appears that no declaration was filed at the return term of the writ, but that the declaration was filed at the February Special Term, 1855, when the plaintiff took his judgment by default; and it is now 'insisted as error, that the plaintiff having failed to file his declaration at the regular term of the court, he could not file it and take his judgment by default at the special term. In order to authorize a judgment by default at the special term of the court, it should have appeared that the defendant was in default in entering his appearance at the preceding regular term of the court; and he could not be said to have been in default in pleading when the declaration was not filed. If he was in no default in pleading to the action at the regular term, he could not be in default in appearing at the special tenn, for the reason, that a cause not in a condition, for want of proper pleadings, for trial at the regular term, could not be tried' at the special term, which was intended to dispose of such business only, on the civil docket, as could have been tried at the regular term of the court, if it had been holden. Under this view of the law, we are compelled to reverse the judgment. Judgment reversed, and cause remanded. Afterwards, a petition for reargument was filed, and granted; and on reargument, Fisher, J., delivered the opinion of the court. It is said by the counsel for the defendant in error, that an execution was issued upon the judgment levied, a forthcoming bond taken, and returned forfeited, and that an execution was issued' upon the forfeited bond, and returned satisfied, before the writ of error in this case was issued, and for this cause we are asked to affirm the judgment of the court below. If these facts be true, they should have been pleaded at the pro [577] per time. It is now too late, after the cause has been decided, to make this defence for the first time, by a petition for a reargument, especially as the facts do not appear by the record brought before us by the writ of error. We therefore adhere to our opinion reversing the judgment.