Spencer v. Webb — 1 Cai. 118

Majority

p. 168

Spencer against Webb, on scire facias.

Headnote

On sci. fa. notice of entry of the rule to appear and plead need not be given, as the service of the sci. fa. is notice of itselfj and the default may be entered on expiration of the rule; but judgment cannot be entered till four days after; if it be, the judgment will be set aside, and the default, if regular, stand. No default ever set aside when regular, except accounted for to the satisfaction of the court.

The facts, as they appeared by affidavit, were as follows:

The defendant was served with a scire facias on Tuesday, the 3d of May last, which was returned scire feci on the 10th. On the same day the plaintiff entered a rule for the defendant to appear in four days, and plead in twenty after notice, or that his default be entered. Notice of the rule was not given, nor was it put up in any conspicuous part of the clerk’s office, nor was any affidavit of notice on file. Default was entered, without any such affidavit, on the 14th of May, on which day the plaintiff entered his judgment also. The defendant swore to a just and material defence, and that he had paid the plaintiff six hundred dollars which had not been allowed him, and offered to let the judgment stand as a security.

Van Vechten,

upon an affidavit stating the above facts, moved to set aside the default and judgment thereon, and that the defendant be let in to plead.

Spencer.

Several grounds of objection may be [*119] taken *to the proceedings. One is, that notice ought to have been given of the return of the sci. fa. and of the rule entered. From the fourth rule of this court, made in April term, 1796,^[3] it appears, that rules

p. 169

to appear on sci. fa. and in ejectment, are placed on the same footing. It is not necessary, on entering the rule, to give notice that the rule has been entered. The notices by the sci. fa. and in ejectment, by the declaration, are tantamount. When the attorney appears, then notice is required ; but a sci. fa. is notice in itself. The default, therefore, being regularly entered, must stand. The next question, then, is whether, if the proceedings are correct in entering the default in four days, the court will let the defendant in, on the merits ? Griswold v. Stoughton,^[3] decided the last term, is ■ in point, that as there is no account given for not appearing, the default is correct, and will not be set aside. There is no excuse for not entering an appearance, and for four days the defendant certainly slept. In Edwards ads. WKinsiry, Cole. Cas. 124, the court said that a default must always be accounted for.

Graham,, amicus curiæ,

observed, that it being a point of practice of some importance, he begged leave to mention that, according to the English practice, when, on a sci. fa. to revive, two nihils were returned, judgment was signed of course on showing the returns to the office.

Van Vechten.

We are not to obtain the effect of our motion for two reasons. Because, according to the English practice, there are no rules on a sd.fa., and because no account is given for the 'default. As to the first, whatever the practice may be in England, our courts have established that a four day rule is to be entered on the return of the writ, and then the ordinary rule is to be given, and if the default be not entered, the defendant may come in at any time. A scire facias is to all intents a new suit, and, therefore, there should be the same practice as in other cases; there may be a plea, &c. In this the default has produced no injury. There could be no judgment till next term.

p. 170

Therefore, this rigid rule of saying that if you do not account we will not hear you, though you give evi[*120] dence of *reasons for our interference, can have no force when we apply to the discretion of the court. The power used in these cases is founded on justice, and whenever any thing like injustice presents itself, the court will interpose and see that no advantage is taken. Here the defendant offers to let the judgment stand, therefore the plaintiff runs no risk, as the defendant’s lands are bound. He swears six hundred dollars have been paid on the judgment. The question then is, whether the defendant does not necessarily deserve favor. Whether the plaintiff shall have execution for six hundred dollars more than are due when merits are sworn to, That the plaintiff is able to re-pay it, is no answer; the oppression of thus wringing so much from the defendant may be intolerable. Notice, either express or constructive, is necessary to a default ; here there is neither. Griswold v. Stoughton does not apply; it was a mere irregularity and no affidavit of merits. The court cannot too much bear in view that no injury can result by letting the defendant in to plead.

Spencer,

in reply, said he had strong doubts whether, on a scire facias, there could be any defence^[3] except nul tiel record, or the judgment satisfied.

It appears that the defendant did not enter any appearance before the expiration of the rule, nor indeed was it until some weeks after that any appearance was entered. It is suggested in answer, that notice ought to have been served of the entry of the rule; this is, on the other hand, denied; and rightly. The default, therefore, is regular, and no reason whatever is assigned how it has been incurred. In all such cases we have determined to hold the party to his default, The rule^[1] of this court says, “ Upon the return of writs sci. fa. if the defendant be returned warned, or the second writ be returned nihil, the defendant shall ^appear in four days, or [*121] judgment shall be entered by default.” Therefore the entry of the default is perfectly consistent with the practice of the court, and must remain. But as judgment ought not to have been signed till four days after, and it appears to have been done on the very day, that is irregular, and therefore must be set aside.^[2] ,^[3]

Motion granted, as to setting aside judgment only.

Radcliff and Livingston, Justices, absent.

(a) (a) а) Rule of October, 1791, Cole. Cas. 31.

(b) (b) On a- verdict a rule nisi for judgment may be entered the first, or any other day in term, Rose v. Rock, 6 Johns. Rep. 330 , though an order to stay proceedings has been obtained, Hackley v. Hastie and Patrick, 3 Johns. Rep. 252 . But even an interlocutory judgment on a default cannot be entered in vacation, though a term has elapsed since entering the default. Hogeboom v. Genet, 6 Johns. Rep. 325 . Before a default can be entered, for vjant of a plea, there must be twenty days after service of notice, which are counted one day exclusive, and one day inclusive; that is, you exclude the day whereon the service is made, and include, as within time, the twentieth day afterwards, within the whole of which day the defendant has to. plead, and a default cannot be entered till the day after, or on the twenty-second day. Hoffman v. Duel, 5 Johns. Rep. 232 . If the time thus calculated expire on a Sunday, the default cannot be entered till the Tuesday, for the defendant has the Monday, because he is entitled to twenty law days, and Sunday, being dies non jurídicas, is as no day. Cock v. Bunn, 6 Johns. Rep. 326 *172 If this mode of calculation had heen adopted, the default would have been entered too soon; for it was entered on the fourteenth, on a return of the tenth. The English rule on sci. fa. expires four days exclusive of the day in which given; (2 Tidd, 1040, last ed.,) it would seem, therefore, that according to our rule the calculation of time on a rule in sci. fa. to appear, varies from the English, and from that on a rule to plead. The words of the 4th rule of April, 1196, are a rule “of four days.” The English practice i» to enter judgment on the day of default in appearing.

[1] [1] For proceedings to revive a judgment, see Code of Procedure, sect, 316, et seq.