Hudson v. Wood , 102 Ala. 631 ( 1893 )

HEAD, J.

The practice and proceedings in the district court of Lauderdale county are regulated by special law. See act creating that court, adopting the practice of the circuit court. — Acts 1890-91, 605 ; and act regulating circuit court practice, Acts 1890-91, p. 351. By the latter, it is provided that the defendant shall be required to appear and demur or plead to the complaint, within thirty days after the service of the summons and complaint upon him, whether such service be made in term time or vacation; and any defendant, failing, for more than thirty days after service has been perfected upon him, to appear and demur or plead, shall be ‘ ‘held to be in default, and at any time thereafter judgment by default, on motion of the plaintiff, may be rendered against him.” It is provided that the court may, for good cause shown, allow the judgment by default to be set aside and demurrers or pleas to be filed, on such terms as the court may think just, but not unless affidavit is made by the defendant, liis agent or attorney, that in the belief of affiant the defendant has a lawful defense to such suit. The general practice in the State is, that when the term of the court is one week the defendant must plead or demur within the first two days of the return term, and when more than one week within the first three days, (Code, § 2732) ; and by the 9th, 10th and 11th rules of circuit court practice (Code, page 807) defaults may be entered on the docket in vacation, which shall relate to the preceding term, and advantage thereof may be claimed at the next term; and after default so entered, the party claiming the benefit thereof shall not be bound to receive any plea or pleading of the party so in default. On timely application, on affidavit showing merit and a sufficient matter of excuse, a default may be set side on such terms as the court may impose. Under this general practice, it was held by this court in Woosley v. M. & C. R. R. Co., 28 Ala. 536, that, construing the several provisions of this statute and rules together, the defendant had a right to plead at any time before the default is entered. That decision, we think, is undoubtedly correct. It was re-affirmed in Rhodes v. McFarland, 43 Ala. 95, and Wagnon v. Turner, 73 Ala. 197. The provision that after the default is entered the party claiming the benefit of it shall not be bound to receive any plea of the party so in default, clearly implies that such plea shall be received at any time before the default is entered. The special law by which this case is governed, supersedes the general practice so far as it would apply to Lauderdale District Court. By it, the failure to demur or plead within thirty days after service operates proprio vigore to establish the defendant’s default, without action ou the part of the plaintiff claiming the benefit thereof; and thereafter the plaintiff is, by the terms of the act, entitled to a judgment by default, on his motion-. The default so created operates an admission of the cause of action, which the defendant has no right to qualify or withdraw by filing pleas putting in issue the allegations upon which the cause of action rests, or otherwise defending against the plaintiff’s right to a judgment, unless upon leave of the court first had and obtained ; the power to grant which leave is inherent in the court, by virtue of its general control over its practice and proceedings. If a defendant, so in default, without leave, puts a plea upon the file, the court, in its discretion, may strike it therefrom. It is confided to the court, in all such cases, to see that justice is done, and its discretion will be exercised to that end. We held in Reed Lumber Co. v. Lewis, 94 Ala. 626, construing a similar act, that it was within the discretion of the trial judge to allow or refuse to allow a plea to be filed, after the thirty days, and that his discretion can not be reviewed or controlled on appeal. The same rule applies to the court’s action striking or refusing to strike from the file a plea filed without authority. We would remark, however, that in the present case, this discretion seems to have been most wisely exercised by the trial judge. After the motion to strike, the defendant was given time to file affidavits of merit. This he failed to do. The court then took a step further and offered to permit the pleas to remain, if de■fenclant’s counsel would state, in Ms place, that the defense was a meritorious one, which the counsel declined to do, saying that his pleas were on file, and that they attested the legal sufficiency of his defense. It would be a yery unwholesome rule that would deny to the court the right to strike out the pleas in such a case.

In Atlantic Glass Co. v. Paulk, 83 Ala. 405, and Elyton Land Co. v. Morgan, 88 Ala. 434, we ruled that the objection that a judgment was by default instead of nil dicit, relates to a mere matter of form, and is without merit, especially when made by the defendant. It may be different when the plaintiff complains. — 83 Ala., supra.

The judgment of the district court is affirmed.