Smith v. Billett

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

•The transcript in this case is not in a plain, legible hand, as required by the rules of this Court. We call the attention of the Clerk below to this fact, that the same defect may not again appear.

This action was ejectment. The plaintiff, after demurrer to the original complaint, filed an amended complaint, in which he set up title accruing to him after the commencement of the suit. To this complaint there was neither answer nor demurrer. A default was entered. It is said now, that the judgment afterward, by order of the Court, was irregular, and should be reversed. We do not think so. It may be very true, that the plaintiff can only count on the title existing in him at the time of the suit, if the defendant does not, directly or impliedly, consent. But it is for the defendant to interpose his objection to a pleading setting up the subsequently acquired title. If he consents, by not opposing, to the plaintiff’s trying the subsequently acquired title, we do not see that he can afterward object to the error, of which he has neglected, at the proper time, to avail himself. Such a judgment would not be void, but only irregular; not even irregular, if the defendant interpose no objection to it. The defendant may see that it is his interest to conclude the controversy by trying this question of title, though irregularly brought into the controversy.

Upon the face of the complaint a good cause of action appears; and it would be going beyond precedent or reason, to hold the action of the Court void, in giving effect to such a complaint, when no objection is urged by the only party who could take exception to it. If the defendant had regularly gone into a trial on the merits, upon issue joined on such a complaint, it is clear he could not then have objected to the judgment; and a judgment by default, which confesses the whole cause of action, is not less conclusive.

2. There was no error in refusing a jury trial after the default, for the simple reason that there was no issue to try.

3. The other points involve only questions of discretion of the presiding Judge, in controlling and conducting the proceedings, which we never review, unless in extreme cases, where the "power of the Court

';is grossly abused, to the oppression of the party; and we do not see that this is manifested by'the proceedings here complained of.

Judgment affirmed.