Paterson v. Evans

18 F. Cas. 1294, 3 Wall. Jr. 215

• Court: U.S. Circuit Court for the District of Western Pennsylvania
• Decided: November 15, 1856
• Status: Published

Opinion

GEIEIi, Circuit Justice.

In our circuit, the plaintiff may bring his suit either in the old-fashioned English way, or in that prac-tised in the state courts. If he adopt the latter way, he must conform to it in all respects. He cannot have a rule on the tenant to appear and plead, and confess lease, entry and ouster, and enter an office judgment in six weeks in case of default, as he might by the old mode. If the defendant does not appear, the plaintiff may have a judgment by default, as provided for by the act of assembly. ' If the defendant appears, he has till the next term to enter his plea, by the act of 1800, and although the act of 1S07 might seem to admit of a judgment in default of appearance at the first term, the courts of Pennsylvania have decided that the two acts must be construed together, and that the judgment cannot be entered for such default till the second term. In Vanderslice v. Garven, 14 Serg. & R. 273, it is said, “The plaintiff could take no step except filing his description, until the second term. The defendant was not bound to do anything till the second term.” Traer v. Bowman. 3 Pen. & W. 70, which says that the judgment “must be founded in an affidavit of service, and must be at the term when the default was made” — must, therefore, mean the second term, otherwise, between the two decisions, the plaintiff could have no judgment at all under the act. But the act of assembly does not provide that if the defendant has appeared, but has not entered his plea at the second term, that plaintiff may on motion have judgment for want of such plea without putting defendant in default by a rule to plead by a certain time. If there be no plea the plaintiff must proceed as in other cases instituted by summons. He must enter a rule to plead or judgment. If this rule be not complied with, he may demand judgment for want of plea a$ in other cases. We have no special rule in this court providing any peculiar practice in this respect in actions of ejectment. It is the practice in the district court of the state, in this county, for the plaintiff’s attorney to order the plea of ‘‘not guilty” to be entered by the clerk, in order to put the case at issue. If any plea in abatement was intended, it should have been entered by the second term at least, if not at the first The defendant, therefore, has no right to complain if the only plea he can enter be entered for him. So much is it considered a matter of mere form, that a verdict and judgment are valid in ejectment where there is no plea.

[At the trial of this case there was a judgment in favor of the plaintiff, which was affirmed by the supreme court, where it was carried on writ of error. 4 Wall. (71 U. S.) 224.]

The plaintiff has not pursued either of the courses, usual in this court; I mean has neither directed the clerk to enter a plea, nor himself ruled the defendant, but having set the cause for trial without an issue, he has obtained a judgment for want of plea, without any rule to put the defendant in default. This is irregular, and the judgment must be set aside. The plaintiff can always avoid the delay incident to proceeding by summons according to the state practice, if he pursues the old common law form of serving a declaration, and ruling the tenant to plead and confess leave, entry and ouster. Judgment set aside.