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If, however, on the contrary, the party in default suffer the time allowed him to elapse, without taking the necessary steps, he will be precluded from further amendments, if the demurrer be partial ; or, if it be to the whole pleading, the party prevailing will be entitled to sign judgment on such demurrer, in the usual manner, exactly as if leave to amend or plead over had not been asked for; or, if asked for, had been refused. All that will be required for the purpose of signing such judgment, will be proof of the service of the order, and, likewise, that the conditions thereby imposed have not been complied with. On these an order should be applied for ex parte, either that immediate judgment should be entered, or that the opposite party should show cause why such should not be the case; or a notice of motion may be given to the same effect. On the return of this order, or the hearing of the motion, the relief will be as of course, unless the opposite party be prepared with his fresh pleading, and obtain leave to put it in, which he can only do upon special leave, and on payment of all costs, including the costs of the motion.
OF TAKING DEFAULT OR INQUEST.
These two proceedings are, in some respects, distinct; in others, analogous. They are distinct, in so far that inquest is an extraordinary remedy, obtainable out of the regular course, and only under peculiar circumstances, and is solely applicable to the trial of issues of fact; whilst default is a regular proceeding, taken in the ordinary march of the cause, and applicable to all trials whatever. The analogy between them, as being both ex parte proceedings, upon the failure of the opposite party to sustain his case, is, however, so close, that they will be most conveniently treated in the same chapter, and in connection with each other.
Where judgment by default is taken, the party taking such judgment must be in readiness in court at the time the cause is called on in its course, and must answer to the call. He must also
be prepared with the notice of trial, and with due proof of service, either by the admission of the opposite attorney, or by affidavit in the ordinary form. If the default be taken on the part of the plaintiff, evidence must be ready to prove the existence of the cause of action, if not admitted upon the pleadings, (in which case no further evidence is necessary ;) and, if the action be upon a promissory note, or other instrument for payment of money, the instrument itself must be in court. A calculation of the amount due for principal and interest, must also, in the last case, be prepared and sworn to. Where, however, unliquidated damages are claimed, the court will order them to be assessed by a jury. If a long account be involved, a reference may either be directed, or, if the account be simple, and the proof of it ready in court, the court may act upon such proof at their discretion, without going through the form of a reference.
The above observations have respect to the taking a default on the part of the plaintiff. If, on the contrary, that measure be taken on the part of the defendant, all that, under ordinary circumstances, will be required, will be the production of the counter notice of trial, and due proof of its service.
The defendant cannot, however, take such judgment as of course, unless he has himself noticed and placed the cause upon the calendar, by means of a counter note of issue. If he omit this precaution, he will be left to his motion to dismiss the complaint, in the ordinary course of proceedings, as before treated of. The precaution of filing a counter note of issue, and giving a counter notice, is so easy and so simple, that it ought never to be omitted.
The above is all that will be required on the part of the defendant, in order to obtain the ordinary judgment of dismissal against the plaintiff. If, however, he claim affirmative relief in his answer, and his right to such relief be not admitted upon the pleadings, he should be prepared with proof of the existence of such counter claim, and also of the amount due to him thereon, if in the nature of a set off, exactly as if the positions of the parties were reversed, and such affirmative relief was sought by him as plaintiff.
Either party attending thus prepared, is entitled to bring on the cause at once, when called, and to take his judgment, if the opposite party fail to appear. A jury is not necessary, as the very failure to appear of itself renders the action triable by the court, under sec. 266; and the affirmative right of the applicant to relief, and the amount of the relief claimable, being shown, either by admission on the pleadings, or by ex parte evidence if requisite, the judgment of the court follows, as of course. Attention should be paid to rule 29, which prescribes that, on taking an order of this nature, the moving counsel's name should be endorsed upon the paper containiag the proof of notice.
Where, however, the opposite party is really and bonâ fide prepared for trial, and his absence at the moment the cause is called on is a mere matter of accident, the application for judgment by default would be not merely ungracious, but practically useless. Under these circumstances, the court will open a default so taken, almost as of course, on an application for that purpose. In cases, on the contrary, of wilful or vexatious delay, or virtual abandonment of his case by the opposite party, the taking a default will be a fitting and appropriate remedy. The question of opening a default or judgment, so taken, will be considered at the close of the chapter.
Inquest, as before stated, is of a nature analogous to, and yet distinct from that of default, inasmuch as it is an ex parte remedy, obtainable by the plaintiff alone, and that only in cases virtually undefended, and this, by bringing on the cause prematurely, and out of its due order, instead of waiting for its being called on in ordinary course.
The remedy by inquest can only be had in default of a sufficient affidavit of merits. If such an affidavit be duly filed and served by the defendant, at any time previous to the actual taking of such inquest, the plaintiff's right to this remedy will be gone. The nature and requisites of the affidavit of merits have been considered in a previous chapter.
In applying for an inquest, the plaintiff must take care that the time allowed to the defendant, for the purpose of amending his answer, has previously elapsed. If not, and if the defendant afterwards serve such amended answer in good faith, and within due time, the inquest will be irregular, and will be set aside as such.Washburn v. Herrick, 2 C. R. 2; 4 How. 15.
One-request may be taken at the opening of the court, on any day after the first day of the term or circuit for which the cause shall have been duly and sufficiently noticed ; for, if the intention to take an inquest be not expressed upon the notice of trial, that notice will not avail. On the second, or any subsequent morning of term, therefore, the plaintiff, at the opening of the court, may apply to have the cause called on for that purpose, though such
cause be not on the day calendar, and without regard to its actual position on the general list.
It has been an usual practice to take an inquest of this description before a jury, and, in Dickinson v. Kimball, 1 C. R. 83, it was held that one taken after the jury had been discharged, the defendant not appearing, was irregular. The latter, it was said, might have waived his right to a jury by non-appearance, but after the jury had been discharged, there was no longer any such right to waive. The inquest, it was accordingly held, should have been taken before the jury were discharged.
At first sight, this case would seem to lead to the conclusion that inquest must be taken by a jury in all cases, but, when more closely examined, this does not appear to be the correct construction. In Haines v. Davies, 6 How. 118, 1 C. R. (N. S.) 407, it was decided that if, when the case is called on, the defendant does not appear, the plaintiff may then proceed to treat such non-appearance as a waiver of trial by a jury under S. 266, and
take his inquest before the court alone; and that there is no difference, in respect of such waiver, between those cases in which the cause is taken up out of its order, and those in which a default is taken on its being regularly called. The case must, however, be called on, and
, the inquest taken, before the jury are discharged, for the circuit or term, as, otherwise, there will be no right to waive, according to the doctrine laid down in Dickinson v. Kimball, which is so far confirmed.
The object of this rule is to give the defendant the opportunity to submit the case to the jury, if, when the cause is so called on, he be in attendance and appear. He has a right, in this event, to
, cross examine the plaintiff's witnesses, and break down his case if he can succeed in doing so. He cannot, though, introduce counter evidence, or prove an affirmative defence on his own behalf, his right to do so being gone by the default. It would seem, however, that he may take exceptions to the admissibility of the plaintiff's evidence, and appeal from the decision thereon, though the question is by no means free from doubt whether he can do so on a judgment by default. See Kanouse v. Martin, 3 Sandf. S. C. R. 653. His easier and more obvious course, where any real defence exists, will evidently be a motion to set aside the inquest.
The plaintiff, on his part, may, it would seem, submit to a nonsuit, if the defendant appear, and it be thought advisable. He must of course be prepared with precisely the same evidence as
hereinbefore indicated, with reference to a default taken on the cause being regularly called on.
If inquest or default be taken against either party unawares, he will, as a general rule, be admitted to prosecute or defend under the enabling powers of sec. 174, provided he satisfies the court of the existence of a bona fide defence or cause of action, and that the adverse proceeding has been obtained against him, through “mistake, inadvertance, surprise, or excusable neglect.” He must of course,
in the case of inquest, swear to merits in the usual form. The application for this purpose must be made on the usual notice. An order to show cause why the inquest or default should not be set aside, will probably be found the more convenient form, as, by adopting that mode, an interim stay of proceedings on the judgment entered or to be entered up, may be obtained as part of the order. In this case, a copy of the affidavit on which the order has been obtained, must be served with it in the usual manner. It is, of course, equally competent for the defendant or party against whom judgment has been entered, upon inquest or default, to move to set aside such proceeding as irregular, on affidavit of the irregularities committed, and that, either upon a notice or order to show cause as above. The opposite party may meet such application by counter affidavits, in order to show that the inquest has been regular, and that no real cause had been shown for opening the order.
If default or inquest, duly obtained, be opened or set aside, for the purpose of allowing the opposite party to try the case on the merits, payment of costs will be imposed on such party as a condition precedent; and it will likewise be competent for a plaintiff who has obtained such judgment, to apply to the court that proper restrictions may be imposed on the defence to be set up. See observations in the last chapter in respect to the analogous case of granting of leave to plead over, after the allowance of a demurrer. If, however, the inquest or default be set aside on the ground of irregularity, costs will of course fall upon the irregular party.
The order to be made on the application as above, must be duly entered and a copy served by the prevailing party. If the inquest be set aside, or the default be opened upon terms, care must be taken that those terms be fully complied with forthwith, or, at all events, within the time limited by the court, a reasonable limitation to which effect should always be asked for by the adverse party. On