Majority
p. 366JOSHUA PHILLIPS vs. RACHEL CANNON.
Headnote
On a hearing in defendant’s absence, though after an appearance, a magistrate must hear proof as well as allegations before giving judgment; and the record must show this.Certiorari to Justice Conaway.
The record showed a service of the process; an appearance of the parties; an adjournment of the case; and that on the day the case stood adjourned to, the “plaintiff appeared; defendant absent; and after examining plaintiff’s account, judgment for plaintiff for $6 47’ debt and fifty-six cents costs.”
The exception was, that the judgment was rendered by default without hearing the plaintiff’s proofs.
Layton, for exceptant.
inclined, at first, that, as the defendant had appeared on a former day, and this could not be called strictly a judgment by default, for want of an appearance, it would not be required that the record should show that the case was proved; but, upon consideration, they held that the object of the act of assembly was to secure a hearing on proofs, as well as allegations, whenever the defendant was absent at the trial, and on that principle they reversed the judgment.