Klinefelter's Lessee v. Carey , 3 G. & J. 349 ( 1831 )

Stephen, J.,

delivered the opinion of the court.

After making the statement before set forth, he said,-the question whieh presents itself to this court is, whether the Court" below were warranted in striking out the judgment, which was entered upon the tenants failing to appear, after such a lapse of time, and permitting the proceedings to take place, which were subsequently adopted.

In all our researches, we have not been able to discover a single decision or precedent, which would countenance or sanction such a procedure. Wherever a judgment in ejectment has been stricken out, upon the'tenants failing to appear, it has always been one of recent date, and never of such long standing as the one involved in the present1 controversy. It has generally been where the period had been too short, for improvements of importance to have been made, in the intermediate time, and where, as the books say, no trial had been lost.

If this case were to be governed by a rule adopted by analogy to that prescribed by the Legislature, for the limitation of appeals, the proceeding would be clearly unwarrantable. But it is not deemed necessary to rely upon that legislative enactment as the basis of our decision, as it may be fully sustained by considerations drawn from other sources. It is true, that actions of ejectment, being creatures of their own, courts of justice will lend a more favorable ear to applications of this nature, than in other cases; but still there are certain limits prescribed by reason, and the policy of the law, whicJfe£agf?t'<siQt to be transcended. In Jackson vs. Stiles, the court say,—“In ejectment, as it i//t^c^creature of v^he courts, every thing will be done to pk> mote iba^pwrce tmthe case, according to right, and the com^wm go further t| protect the possession, when it can beldone-"íftdhr injjiry to the plaintiff’s claim, than it is willin"other chisto proceed. As therefore, there was a full knowlMgem October last, of an intention to make this application, and the transactions are all of a recent date, we are of opinion that the default entered against the casual ejector, the judgment thereon, and the writ of possession sued out, be set aside, and a writ of restitution issue, on payment of costs.” So in Jackson vs. Stiles, 4 Johns. Rep. 490, the court also say: “The excuse given by the attorney of the defendant, for not entering into the consent rule in season, is frivolous and inadmissible. But here the tenant swears to merits, and as no trial has been lost, we will not let the possession be changed in an action of ejectment, without an opportunity to the defendant to defend it. It was said in the case of Jackson ex. Dem. Rosekraus vs. Stiles, 1 Caines, 503, that the court would set aside a default, to protect the possession of the tenant, in an action of ejectment, when they would not do

it in any other action. We therefore grant the motion, on payment of costs, and on the tenants entering into the consent rule, and pleading within ten days, so that the cause may be tried at the ensuing circuit in Ulster.” In Runn. Ejec. 120, the law is stated to be as follows.: “If a judgment be signed against the casual ejector, and it be made appear that no declaration was rightly served, the court will set it aside. Also, where a judgment has been obtain-, ed against the casual ejector, but no trial lost, the court will, on payment of costs, and the tenants entering into the common rule to confess lease, &c., set aside such judgment, as in other actions; and not put the tenant to the charge and hazard of recovering back his possession by another action.” So in 1st Richardson’s Prac. 506, the law is laid down to be as follows: “Where judgment is obtained against,, the casual ejector, and a trial is not lost, the court will, on payment of costs, and entering into the common rule for confessing lease, entry and ouster, set aside such judgment, as in other actions, and not put the tenant to the charge and hazard of recovering back his possession by another action.” In Spurrier’s Lessee vs. Yieldhall, 2 Harr. and McHen. 173, the case was as follows: “An action of ejectment was brought to May term, 1785, and at May term, 1786, a judgment was confessed for possession and costs. A writ of habere facias possessionem issued to October term, 1786, and the sheriff returned, “possession delivered.” At May term, 1787, it was ruled by the court, “that Resin Spurrier show cause, this term, why the writ of possession, and judgment entered at May term, 1786, for his lessee, and Benjamin Yieldhall, should not be set aside.” And on the 21st of May, in the same term, the following entry was made: “It appearing to the court, by the affidavit of Upton Scott, that át the time of commencing the suit of ReSiñ Spurrier’s lessee, against Benjamin Yieldhall, the said Upton Scott was in possession of nine and a quarter acres of the land, for which the ejectment was brought, and that no copy of the declaration in ejectment was - served upon him, and that the said Scott claims the said nine and a quarter acres of land, as tenant in fee simple, and a rule having been served on the plain tiff to show cause, &c., and the said Upton Scott now praying that the judgment and execution be set aside, as to the said nine and a quarter acres, and that he be admitted defendant in this cause, as to the said acres: Ordered, that the judgment be struck out, as to the said nine and a quarter acres claimed by the said Upton Scott” By all these cases the principle seems to be affirmed, that it is only where the judgment is a recent one, that the court will interfere for the purpose of setting it aside, to enable the tenant to appear and defend his possession. But no case it is believed can bo found, where a judgment has been stricken out, after such a lapse of time, and under the circumstances existing in the present case.

judgment reversed, and a writ of Restitution awarded, to restore the possession to the appellant.