Hudson v. Wood

• Decision Date: 12 April 1894
• Citation: Hudson v. Wood, 15 So. 356, 102 Ala. 631 (Ala. 1894)
• Parties: HUDSON v. WOOD.
• Court: Alabama Supreme Court

15 So. 356

102 Ala. 631

HUDSON v. WOOD.

Supreme Court of Alabama

April 12, 1894

Appeal from district court, Lauderdale county; W. P. Chitwood Judge.

Action by Sallie E. Wood against W. A. Hudson on a promissory note.From a judgment for plaintiff, defendant appeals.Affirmed.

This action was commenced on April 21, 1891.The summons commanded the defendant"to appear at the next term of the district court to be held for said county, at the place for holding the same, then and there to answer the complaint of Mrs. Sallie E. Wood."This summons was executed on the defendantApril 28, 1891.On June 1, 1891, which was the first day of the June term of said court, the defendant entered appearance by his attorney, Mr. Parkins, on the docket of said court, pleas were filed, and a trial by jury was demanded at the time of filing the pleas.On July 10 1891, the plaintiff's attorney moved the court to strike defendant's pleas from the file, because they were not filed within 30 days from the service of the summons and complaint upon the defendant.In response to said motion, the court said that Mr. Parkins was marked as attorney for defendant, and he would hear him before deciding the question, and that he would not strike the pleas from the file if an affidavit was made, either by the defendant or his attorney, that there was a meritorious defense to the action.On the following day, the plaintiff renewed his motion, which was resisted by the defendant, who demanded to be allowed to try the case on his pleas, filed June 1, 1891.Thereupon the court asked the attorney for the defendant to state in open court that his defense was a meritorious one.This the defendant's attorney declined to do, saying that his pleas were on file, and that they attested the legal sufficiency of his defense.After hearing the argument, the court ordered the pleas stricken from the file, and thereupon rendered judgment nil dicit against the defendant, which judgment is here assigned as error.

Nathan Parkins, for appellant.

Emmett O'Neal and Pickett & Crow, for appellee.

HEAD J.

The practice and proceedings in the district court of Lauderdale county are regulated by special law.See act creating that court, adopting the practice of the circuit court(Acts 1890-91, p. 605), and act regulating circuit court practice ( Id. p. 351).By the latter, it is provided that the defendant shall be required to appear and demur of plead to the complaint within 30 days after the service of the summons and complaint upon him, whether such service be made in term time or vacation; and any defendant, failing for more than 30 days after service has been perfected upon him to appear and demur or plead, shall be "held to be in default, and at any time thereafter judgment by default, on motion of the plaintiff, may be rendered against him."It is provided that the court may, for good cause shown, allow the judgment by default to be set aside, and demurrers or pleas to be filed, on such terms as the court may think just, but not unless affidavit is made by the defendant, his agent or attorney, that, in the belief of affiant, the defendant has a lawful defense to such suit.The general practice in the state is that when the term of the court is one week, the defendant must plead or demur within the first two days of the return term, and, when more than one week, within the first three days (Code, § 2732); and by the ninth, tenth, and eleventh rules of circuit court practice (Id. p 807) defaults may be entered on the docket, in vacation which shall relate to the preceding term, and advantage thereof may be claimed at the next term; and, after default so entered, the party claiming the benefit thereof shall not be bound to receive any plea or pleading of the party so in default.On timely application,...