Davis v. Rees

Headnote

The defendant in an action before a justice of the peace asked a postponement, and, bj letter, put in a plea of the general issue; but declined appearing in person. Held appearance, so as to authorize a judgmeut on hearing.

Certiorari to justice Stockly.

Record. Rees vs. Davis. Plea of debt for $5 due by accoum

Summons issued, returnable August 9th, 1842, returned “served personally;” and “on the 9th of August, 1842, the defendant asks a continuance and trial is postponed to Tuesday the 16th instant, on which day the plaintiff being necessarily absent, trial is again postponed to Tuesday, the 23d instant. Subpcena issued for plaintiff. And now, to wit: this 23d of August, 1842, the plaintiff appears; the defendant sends his plea of nil debet; he puts the plaintiff upon his proof and declines to appear in person: upon a hearing judgmenthereby given against the said Isaac Davis, the defendant, in favor of the said John P. Rees, the plaintiff, for the sum of $3 20 debt and 76 cents costs.”

The exceptions were — 1st. That the defendant never appeared, and judgment was given against him by default, without any verification of the service of the summons. 2d. That the judgment was rendered by default, without a hearing of the proofs and allegations of the plaintiff.

argued that this was essentially a [judgment by default; that the defendant never appeared; that the re-uest for a postponement might have been made by letter and with-ut appearance. The record ought to have shown the appearance fifirmatively, to remote such errors as an appearance cures. It as not doubted that if this was a judgment by default for want of n appearance, the omission to verify the constable’s return was fatal.

contended that the record showed an ap-earance. The defendant had no right to plead; no right to ask a ostponement of the cause without an appearance; and such applica-ion or plea is an appearance. The' act of assembly does not re-uiro the justice to note the appearance of the defendant; and the ■est evidence of appearance is the putting in a plea, or otherwise .cting in defence of the cause. Can the defendant after obtaining a ostponement of the cause, be permitted to deny his appearance?

The great essential of a cause is parties in court, nd there can be no more important matter to be stated on the re-ord than the appearance of the defendant. An appearance must be personal attendance, (or at least by agent,) at the time and place Inentioned in the warrant. A postponement at the request of a party aade out of court, or even by letter; or a plea thus put in would be Irregular, and would not amount to an appearance.