4 Blackf. 169 | Ind. | 1836
Wilson recovered a judgment by default against Bliss, in Huntington county, before a justice of the peace. Afterwards, a scire f acias to show cause why execution should not issue upon that judgment, was issued against Bliss in Cass county by a justice of the peace. Bliss appeared to the scire facias, and judgment was rendered against him. lie then appealed to the Circuit Court. The parties submitted the cause to the Circuit Court, and a judgment was there rendered against Bliss for the sum considered to be due.
The objection to these proceedings is, that the judgment in Huntington county was rendered against the defendant by default, without his having had notice of the suit.
It has been decided, that in the case of a judgment by default, the writ and return are a necessary part of the record. Nadenbush v. Lane, 4 Rand. 413. The reason of this is, that the record may always show whether the judgment rendered against a man in his absence, was with or without notice of the suit. If he had no notice, in cases like the present, the judgment is a nullity. Were the law otherwise, every person would be liable to have judgments rendered against him without cause, and without his knowledge.
The transcript of the justice in Huntington county shows that process had issued in the cause against Bliss, and had been returned; but it does not show that the process had been served. For any thing that appears in the record, Bliss may not have had any notice, either actual or constructive, of the pendency of that suit; and the judgment against him in the case, therefore, is of no validity. The necessary consequence is, that the scire f acias and proceedings under it, founded on that judgment, cannot be sustained. ■
The judgment is reversed with costs. Cause remanded, &c.
