Nice v. Bowman , 6 Watts 26 ( 1837 )

The opinion of the Court was delivered by

Rogers,

— This was a proceeding under the act of the 20th of March 1724, which regulates the practice on writs of summons, and arrest, and which provides that if the defendant in the writ does not appear, at the return day thereof, but makes default, and the officer to whom the writ was directed certifies to the court upon oath or affirmation, that on or before the return day, &c., he summoned the defendant, &c., or left notice in writing at the house of defendant, &c. Upon which return, if the defendant has been so served ten days, and the plaintiff has filed his declaration in the office, five days before the court to which such writ is returnable, it shall be lawful for the plaintiff to file a common appearance for the defendant so making default, and proceed to judgment, and execution, by nihil dicit. It appears, that the summons was duly served, but the declaration was not filed within the five days before the court to which the writ was returnable. The suit was summons or debt on bond, returnable to the November term of 1835, and the declaration was filed on the 11th of April 1836, and on the same day judgment was entered for default of appearance. It is very clear, that the directions of the writ have not been pursued; for, the declaration, instead of being filed five days before the return day, was not filed until the succeeding term; and if the question were a new one, we should have great difficulty in supporting the judgment. But time has not been considered material, as was decided in Morrison v. Wetheral, 8 Serg. & Rawle 502. There the broad question was decided, that a judgment by default, under the act of the 20th of March 1724, was good when a declaration has been filed, and the defendant has not appeared, though the declaration was not filed five days before the return of the writ. The declaration was filed two days before the return, but whether filed before or after the return, can make no difference in the principle. It has not been the practice, says Justice Duncan, in delivering the opinion of the court, to enter an appearance for the defendant and take judgment by nihil dicit, but to enter judgment by default. Nor has it been usual to file declarations before the return of the writ, but to take judgment after the declaration is filed and the defendant has made default by not appearing. When there has been a practice for more than half a century, it would be mijust to return to the strict letter of the law, and say that all has been error during that period. It would be still more unjust to alter the practice after it has been sanctioned by a decision of the court.

But it is said, that special bail was entered before the suit was commenced on the bail bond, and after special bail in the original action was entered, and the judgment cannot, therefore, be sustained. Union Bank v. Haft, 2 Serg. & Rawle 284. But was special bail entered? The paper which was filed among the records of the original suit, does not possess any one of the requisites of special bail. Bail above, or bail to the action, must be put in either in open court, or before one of the judges thereof, or else before a commissioner appointed for that purpose. • We do not know by whom this bail was taken, but the probability is, it was taken before a justice of the peace, and transmitted, and filed among the records without the sanction of the court or any of the judges. The court were, therefore, right in treating it as a nullity and. signing judgment by default.

The objections, that the court erred in discharging the rule to show cause why the judgment should not be opened and proceedings set aside, and in refusing to enter an exoneretur on the bail bond, upon the production of the discharge of David Nice, under the insolvent laws, have not been sustained. These were matters which rested in the sound discretion of the court of common pleas, and cannot be assigned for error in this court.

The last error, in issuing a fieri facias before a writ of inquiry had, is not before us, the writ of error bringing up the judgment only and not the execution.

Judgment affirmed.