Burns v. Loeb ( 1881 )

Cooper, J.,

delivered the opinion of the court.

The appellees sued out an attachment against the estate of the appellant, returnable to the September term of the Circuit Court of Tippah County, and the same was levied upon certain personal property of the defendant therein, and was also personally served on him. On the second day of the term, the defendant interposed a claim to a part of the property levied on, as exempt to him from levy under attachment or execution, and on that day his claim thereto was tried and determined in his favor. On the same day, but after the trial as to the exempt property, a judgment by default was rendered, and the balance of the property attached was condemned to be sold. The record does not show any other action taken by the defendant subsequent to his recovery of the exempt property. It is now assigned for error that the court erred in rendering a judgment by default before the expiration of the time within which the defendant might plead to the action.

In the case of Winston v. Miller, 12 S. & M. 550, it was said that a judgment by default, rendered before the expiration of the time given by statute to the defendant to plead, would not be reversed as erroneous because the defendant ought to apply during the term for an order vacating the same, and for leave to plead. In that case, however, the declaration failed to show a cause of action and the judgment was reversed on that ground. It is therefore probable that the court spoke as to the other point without careful examination of the question. We have been unable to discover any other decision to the same effect, and as injustice may in some cases result from an adherence to the principle therein announced, and no injury can result from a departure from it, we are unwilling to follow it. We think the true rule is, that where a judgment is irregularly entered against the provisions of a statute, it is an error for which the judgment will be reversed on appeal, unless it is affirmatively shown that the defendant has subsequently taken some step in the cause from which a waiver of the irregularity may be inferred, and while it is true that courts will infer such waiver from slight circumstances, it is not sufficient to show that no action was taken at the term at which the error was committed. Doan v. Holly, 27 Mo. 256; Burt v. Scrantom, 1 Cal. 416.

Judgment reversed and cause remanded.