Dupree v. Smith , 3 Ala. 736 ( 1842 )

' COLLIER, C. J.

Though the first writ is returned executed generally, we must consider it as served on Hampton alone, because the Sheriff returns specially that Dupree was not found. And the object of the second writ although it is not professedly an alias, was intended to bring Dupree before the court.— In this view of the case, the spring term 1840, was obviously, the appearance term, and the first at which the parties could make up their pleadings.

The adjourned term of the court holden in July, 1840, at which the judgment was rendered, was but a continuation of the preceding term, so that in effect the judgment was rendered without the intervention of a continuance.

By the act of the 2d February, 1839, “to abolish attorneys’ fees in certain cases,” it is enacted, that in suits brought for the purpose of collecting money, no judgment shall be rendered at the appearance term (unless it be by consent,) for the failure of the defendant to plead or enter an appearance as then required by law. And that the defendant shall plead to the merits within the first week of the appearance term, and upon failure to do so, shall forfeit his right to make any de-fence thereafter. The terms of this act are exceedingly clear» and show that in a case like the one before us no judgment can be rendered against the defendant, unless it be by consent, until the second term after the service of process.

There is nothing in the record to show that the defendants consented that a judgment might be taken against them. The consent contemplated by the act is express, and not merely in-ferrable from an omission to plead. This is indicated by the positive declaration that no judgment shall be rendered at the appearance term for the failure to interpose a defence.

We find in the record what is called a plea, but it is only the title of a plea, and could not be recognized unless accepted by the plaintiff. But if it were entirely forma] it could not influence our judgment in any degree. Our conclusion is, that the judgment of the Circuit Court must be reversed and the cause remanded.