Archibald v. Lamb

9 Ind. 544 | Ind. | 1857

Stuart, J.

This cause was docketed in the Court below for the tenth juridical day. On the fourth day of the term the defendant was, on the plaintiff’s motion, ruled to answer on or before the seventh day of the term. On the ninth day of the term the Court rendered judgment by default against the defendant.

If the defendant appear and answer, the Court cannot compel a trial before the day set. The day thus set is the guide to subpoena witnesses and prepare for trial. It is the trial day, but not the day for making up the issues. The statute does not mean that the issues shall not be made up before that day.

S. A. Huff, Z. Baird, and J. M. La Rue, for the appellant.

We are referred to 2 R. S. p. 119, s. 359. The clerk shall set as many causes for each day, viz., for trial on each day, as, in his opinion, will be disposed of by the Court, and they shah be called for trial in their order on the docket. The whole of that section refers to trial, and not to issues.

Under the head of “time of pleading,” is to be found the rule for making up issues. Thus—

“ Sec. 68. On the second and each succeeding day of the term, the Court shall call as many of the causes which stand for trial at such term, for issues, as the business of the Court will permit; the Court shall call the causes in the order they stand on the docket, and shall compel the parties to file their respective pleadings, and answers to interrogatories, at such time as the Court shall deem just, in no case allowing unreasonable delay; and the pleadings shall be completed at an early day of the term.

“ Sec. 69. If, from any cause, either party shall fail to plead or make up the issues within the time prescribed, the Court shall forthwith enter judgment as upon a default, unless for good cause shown, further time be given for pleading, on the payment of the costs occasioned by the delay.” 2 E. S. p. 42.

So that on the second, and each succeeding day, the causes may be called for issue. The Court shall compel the parties to file their pleadings and complete the issues at an early day of the term. On failure to do so, judgment is to go by default.

We have already given the same construction to the statute in several cases at the May term, 1857, ⁽¹⁾. See, also, Langdon v. Bullock, 8 Ind. R. 341.

The ruling below was in strict accordance with the statute cited.

Per Curiam.

The judgment is affirmed with costs.

(1) See Blair v. Davis, ante, 236; Blair v. Manson, ante, 357.