Barker v. Shepard ( 1868 )

Peyton, J.,

delivered the opinion of the court.

The defendant- in error instituted suit in the Circuit Court of Monroe county against the plaintiffs in error and one Hubbard Saunders.

Upon the writ of 'summons the sheriff made the following return: “ Came to hand, and executed on B. M. Bradford, by leaving a copy of this writ at his residence; also on B. B. Barker in person, and handed him a copy of this writ, May the 9th, 1860. Defendant Saunders is not to be found in my county, May the 9th, 1860.”

At the November Term of said Circuit Court the cleifk made the following entry of judgment in this case: “Came the plaintiff by attorneys, and defendants, Baylor B. Barker and Benjamin M. Bradford, also by attorneys, and plaintiff dismissed this suit as to the defendant, Hubbard Saunders, as to whom the writ has not been executed; thereupon the other defendants withdraw their plea, and say nothing further in bar or preclusion of the plaintiff’s action. It is therefore considered by the court that the plaintiff recover of the defendants, Benjamin M. Bradford and Baylor B. Barker, the sum of sixteen hundred and thirty-five dollars, the debt in the declaration mentioned; also the further sum of eighty-seven dollars and seventy-five cents, the damages sustained by reason of the detention of said debt, together with the costs in this behalf expended.”

The plaintiffs prosecute this writ of error to reverse said judgment, and assign for error that the return of process as to Bradford is not sufficient to warrant a judgment against him.

There is no plea in the record for the plaintiffs in error, and the return of the service of process on B. M. Bradford is not in compliance with the requirements of the statute, and is clearly insufficient to authorize a judgment by default against him.

The only question for the consideration of this court is, whether the recital by the clerk before the entry of judgment, that the plaintiffs in error appeared by their attorneys and withdrew their plea, in the absence of any plea in the record, will constitute an appearance for the plaintiffs in error.

It is insisted by the counsel for the defendant in error that the recital in the record is sufficient evidence of the appearance of Bradford to uphold the judgment, and the ease of Gwin v. Williams is cited in support of that position.

We do not think that case sustains the position assumed by them. That was an action of ejectment, in which the record states that “Alexander Gwin, on his motion, was admitted to defend in the room of Richard Roe, and thereupon by his attorney comes and defends the wrong and injury, when, etc., and pleads the general issue, confessing lease, entry, and ouster, etc.” This standing alone in the record would not have been sufficient evidence of Gwin’s appearance to the action, but taken in connection with other parts of the record, which show that the defendant appeared and conducted the defence throughout by his attorney, offering instructions and making a motion for a new trial, it was sufficient evidence of his appearance. The record in that case shows that both parties were in court, and proceeded to the trial of the cause on an informal and defective plea, without any objection thereto by either party. Gwin v. Williams, 27 Miss. 324, 333.

The record of this case contains no plea whatever of any character. It contains the mere recital of an implied fact, which is contradicted by the record. If the plaintiffs in error appeared as the recital states, it must have been by plea, and that should appear in the record, notwithstanding the recital states that they withdrew their plea. A plea, when filed among the papers in a cause, cannot itself be withdrawn from the file, except by leave of the court, and that should appear in the record. The phrase, withdraw a plea, means in legal contemplation to withdraw or waive the defence set up in the plea, and not to abstract the plea itself from tbe file; that remains on file, and constitutes a part of the record in the case.

Although it maybe conceded that there was no statute of this State prior to 1857 which required pleas to be in writing, yet, by a long and well-settled practice, the pleadings in a cause in any superior court of this State, proceeding according to the course of the common law, have always been required to be drawn up in writing, independently of any statutory regulation upon the subject. ■

Even under the ancient practice in England, when pleadings were delivered orally by the parties or their attorneys in open court, in the presence of the judges, they were contemporaneously reduced to writing by an officer of the court, and together with a short notice of the nature of the action, the time of the appearance of the parties in court, and the acts of the court itself during the progress of the pleading, constitute the record of the case. Stephen on Pleading, 25. And by the modern practice in that country, which dispenses with the actual presence in open court, the appearance of the .defendant is effected by making a certain formal entry in the proper office of the court, expressing his appearance; or, in case of arrest, it may be considered as effected by giving bail to the action. On the part of the plaintiff. no formality expressive of appearance is observed, but upon' the appearance of the defendant both parties are considered as in court. As the pleadings have long since ceased to be delivered orally in open court, they are drawn up in writing in the first instance. Stephen, on Pleading, 26. It thus appeal’s that from an early period in the English jurisprudence to the present time, the pleadings have been.reduced to writing, and constitute an. essential part of the record.

’The statute provides that all pleadings shall be signed by the party or his attorney. Revised Code, 496, art. 115.

This court has repeatedly decided that a mere recital in the record by the clerk, in the absence of a plea for defendants, “ that the defendants appeared by attorney,” will not constitute an appearance for those not legally served with process, and will not warrant a judgment against them. Pittman v. Planters' Bank, 1 How. 527; Dean v. McKinstry, 2 S. & M. 213; Edwards v. Toomer, 14 S. & M. 75; Miller v. Ewing, 8 S. & M. 421; Schirling v. Scites, MS.

In the ease of Steele v. Palmer, MS., this court decided that a recital in the record, that “ the defendant demurred, to the evidence,” without any demurrer appearing in the record, is insufficient to support a judgment overruling such demurrer.

In the case of Moores v. Parker, 3 Littell, 263, in which there were two defendants, and only one of them served with process, and judgment was rendered against both of them without any appearance or plea, the court says: “ It is true the record recites that the parties came by their attorneys. But such a recitation on the record, we think, ought not to be construed into an appearance of the defendant not served with process.”

And again, in the case of Hall v. Williams & Fiske, in which process had not been served on Fiske, it was held by the court that a recital by the clerk before the entry of the judgment, stating that c! Williams & Fiske came by their said attorney,” could not'be taken to be an assertion of record that “ Fiske appeared to the action,” in the absence of a plea for him. 6 Pick.

The mere statement in the record of this case by the clerk, unaccompanied by a plea, and not sustained by any other part of the record, is deemed wholly insufficient to authorize a judgment against Bradford.

This view of the case accords with the previous adjudications of this court upon the subject, and we think it safer to adhere to them.

To give absolute verity to mere recitals in the record by the clerk, often made inadvertently, cúrrente calamo, and without due consideration of the facts of the case, would be productive of much mischief and injustice.

Let the judgment be reversed, and the cause remanded.