Page vs. Sutton, Orlopp & Co.

brought by appeal; but because the verdict was not warranted by law, and a new trial for that reason should have been had, the judgment is reversed and the cause remanded to the circuit court of Pulaski county, to which the jurisdiction of the said criminal court has been transferred by law and now belongs, with the instruction to set aside the said verdict and order a new trial, and for further proceedings.

PAGE VS. SUTTON, ORLOPP & Co.

1. APPEAL: From a justice of the peace on judgment by default. An appeal cannot be granted from a judgment by default rendered by a justice of the peace, unless the defendant, within ten days after the judgment is rendered, make application to the justice to set it aside.

2. JUDGMENT BY DEFAULT: When proper.

When a defendant has appeared to the action but interposed no answer or defense, judgment by default may be rendered against him.

APPEAL from Pulaski Circuit Court.

Hon. JOHN WHYTOCK, Circuit Judge.
Benjamin & Barnes, for appellant.
Rose, contra.

HARRISON, J. Sutton, Orlopp & Co. sued P. Cady and Henry Page, before a justice of the peace in Pulaski county, upon an account. The summons was served on Cady but not on Page; and at the return of the summons, judgment by default was taken against Cady and an alias summons issued against Page.

At the return of the alias summons, which was on the 10th day of July, 1873, Page appeared and applied for a continuance of the case, which was granted; and on the 14th day of

Page vs. Sutton, Orlopp & Co.

July, 1873, the time to which the same had been continued, he again appeared, and the case was, by consent of parties, postponed until the next day. On the next day, the 15th of July, Page failed to attend and judgment by default was rendered against him also.

On the 5th day of August following, Page, without having applied to have the judgment set aside, applied to the justice for an appeal, which the justice refused to allow; whereupon he applied to the judge of the circuit court for a rule on the justice to allow the appeal and to send up to that court a transcript of the proceedings, together with the papers in the case.

The justice in response to the rule returned and showed the foregoing facts; and upon consideration of the sufficiency of the same, the court discharged the rule and dismissed the proceedings. From this order Page appealed.

The provisions of the statute regulating appeals from the judgments of justices of the peace are plain and explicit; that particularly relating to appeals from judgments by default, is as follows:

"No appeal shall be taken from a judgment by default, unless within ten days after the rendering of such judgment, application shall have been made to the justice by the party ag grieved to set the same aside, and such application shall have been refused." Gantt's Digest, 3820.

The appellant, however, contends that having appeared at the return of the summons and obtained a continuance of the case, the judgment subsequently rendered was not a judgment by default. We are at a loss to see how that fact could, in the least, change or affect the case or the judgment to be rendered. The same consequence attended his failure to be present and contest the plaintiff's demand on the last day, as would have followed such failure on the return day of the summons, had he not appeared and got a continuance of the case.

VOL. XXIX.-20

Page vs. Sutton, Orlopp & Co.

His failure and neglect to defend the suit was an admission of his liability.

Burrill in his Law Dictionary gives this definition of default: "Default. In practice, omission, neglect or failure. When a defendant in an action at law omits to plead within the time allowed him for that purpose, or fails to appear on the trial, he is said to make default; and the judgment entered in the former case is technically called a judgment by default."

Judgments by default, according to the common law practice, are either by non sum informatus, where, instead of entering a plea, the defendant's attorney says he is not informed of any answer to be given to the action; or, nil dicit, where it is rendered against the defendants for want of a plea.

A default may be after an appearance as well as before. When no answer or defense is made to the action, no issue is formed between the parties, and there is no trial required to determine the defendant's liabilities; the only inquiry to be made is, as to the amount for which the judgment shall be rendered.

This, it was the duty of the justice to ascertain, and which he did in the same manner he would have done had the defendant not appeared on the return day of the summons. The appellant, rot having complied with the statute by apply. ing to have the judgment by default set aside, was not therefore entitled to an appeal therefrom; and his application to the circuit court to compel the justice to allow the same was properly refused.

Judgment affirmed.

Files vs. Harbison et al.

FILES VS. HARBISON et al.

1. COMMISSIONER'S SALE: NOTICE: Erroneous advertisement.
A special execution was issued under a decree for the foreclosure of the
vendor's lien, in which the lands were correctly described, the com-
missioner to whom the execution was issued, returned that he had
sold the lands described in the execution, and made a deed to the
purchaser in conformity to the return; through a clerical error the
land was misdescribed in the advertisement, and the commissioner,
without appearing to have known of the mistake, told a stranger to
the proceeding, he would only sell the lands that were advertiseă;
the purchaser was not a party to the process, nor shown to have had
knowledge of the mistake: Held, that whether the commissioner's
conduct was influenced by fraud or mistake, the purchaser obtained
a valid title.

2.-How irregularity may be remedied.

If the irregularity was prejudicial to those interested in the land, they had the right to apply to the court from which the execution issued, to have it set aside.

3. When the return cannot be contradicted.

--

In such a case, the commissioner's return cannot be contradicted after deed is executed.

4. EVIDENCE: Of bankruptcy, and sale by assignee.

Where the bankruptcy of a party, and the sale and assignment by his assignee of a judgment in his favor are to be proved, a certified transcript of the adjudication, and the written assignment of the judgment, are the best evidence.

APPEAL from Ashley Circuit Court.

Hon. HENRY B. MORSE, Circuit Judge.

J. W. Van Gilder, for appellant.

ENGLISH, C. J. Abner W. Files brought an action on the law side of the Ashley circuit court, against Jackson P. Harbison and Presley F. Harbison, for the northwest quarter of section eight, T. 17 S., R. 8 W., alleging in the complaint, title

Files vs. Harbison et al.

and right of possession in himself, and that defendants held possession of the land without right, etc.

The defendants filed an answer April 26, 1871, denying each and all of the statements in the complaint.

On the 2d of May following, the defendants filed an amended answer, alleging in substance as follows:

That on the 24th of February, 1868, one B. Tiner, then sheriff of Ashley county, offered for sale the N. W. of N. W. of S. E. of sec. 8, T. 17, R. 8, and no other lands in said section, and not the N. W. of said section, under an execution in favor of D. L. Pippin v. Wm. Harbison.

That being in possession of the N. W. of said section, and claiming title thereto, they made inquiry of the sheriff if he intended to sell any other lands than those mentioned in the advertisement, and he said he had only the right to sell such lands as were duly and regularly advertised, and he would sell no others. And defendants say that said N. W. of said section 8 never was advertised, and was never sold by said sheriff, and that said plaintiff Files had notice of these facts.

That said N. W. 1 of sec. 8 was never levied on under said fi. fa. in favor of said Pippin v. Wm. Harbison, and was never sold at said sheriff's sale.

That said judgment in favor of Pippin v. Harbison remaining unexecuted, and said Pippin having gone into bankruptcy, the same passed to his assignee, who on the day of

187-, exposed the same for sale at Hamburg, and defendants became the purchasers thereof, and the said assignee transferred and assigned the same to them.

And the lien of said judgment remaining in force, defendants caused an execution to be sued out on said judgment, and levied on said N. W. of sec. 8, which was purchased by them, and a certificate of purchase executed and delivered to them. And of this they put themselves on the country.