41 Ga. 76 | Ga. | 1870
*By the Court—
delivering the opinion. .
The record in this case shows, that on the first trial the jury found in favor of the defendant, and the plaintiffs appealed to a special jury. On the second hearing, the plaintiffs introduced evidence to prove the account sued on, and closed. The defendant introduced no evidence. Defendant’s counsel then proceeded to state his points to the jury, to-wit: that plaintiffs had failed to make out a case, and on that ground he objected to the finding of a verdict against him. The Court ruled that defendant had no right to be heard, or to make any such objection, as he had filed no plea. And this is the error assigned.
In the case of McConnell v. Bryant, 38th Georgia Reports, 639, decided at last June Term of this Court, Bryant, a millwright, had filed his affidavit to foreclose his lien on a mill, hnd McConnell had filed his counter-affidavit, which, under our statute, makes up the issue. That case, like this, had gone to the appeal; and on the appeal trial, McConnell failed to appear, ánd his counsel abandoned his case, and refused to represent him further, on the ground that his fees were not paid. The Court below ordered McConnell’s affidavit to be dismissed, and directed the execution which issued on Bryant’s affidavit to proceed, and we held that the Court should have required Bryant to make out his case, as in other cases of default, by prima facie proof-of the justice of his claim, before he was permitted to take judgment.
If the plaintiff in a case in default is bound, as is well established in this State, to make out his case by prima facie proof of the justice of his claim, before he is entitled to judgment, why may not the defendant object to the rendition of a judgment against him, till this rule of law has been complied with? The English practice on this subject has never been adopted in Georgia. There, in case judgment is rendered by default, if the suit is for a specific thing, as in an
Instead of this practice, the damages have always been assessed in this State by a jury, in the Superior Court, upon the production of proof by the plaintiff, .as in other cases. But the judgment has been rendered upon the evidence submitted by the plaintiff alone. The defendant having filed no plea, can introduce no evidence. The burden of proof is still on the plaintiff, however, and he must make out a prima facie case by proof, before he has any right to a judgment; and it is error in the Court to order judgment for the plaintiff’s demand, till it has been established by proof, or to refuse to set it aside 'if rendered without prima facie proof of the justice of the plaintiff’s demand.
But why should the defendant who has filed no plea, and *can not, on that account, introduce .evidence, be denied the right of objecting to the rendition of an illegal judgment against him, upon the case made by the plaintiff? In reply it is said he can not object because he is in default. But what, in our practice, has been considered the effect of the default? He did not plead, therefore he can not introduce evidence, because the proof must follow the allegation, and as he has alleged nothing in avoidance of the 'plaintiff’s action, he can prove nothing. But this does not relieve the plaintiff from the burden of making out a case by
Whatever may be the practice elsewhere, under our system, the only .effect of a failure to plead, is the loss of the right to introduce evidence. But this neither relieves the plaintiff from the necessity of making out his case by proof, nor deprives the defendant of the right to object, that the plaintiff has failed to meet this requirement. The English rule is, that the default admits that something is due the plaintiff, or that he is entitled to some damage, 'and in all cases on the trial of a writ of inquiry, the jury must find something for the plaintiff, and this would generally carry costs against him. We are not prepared to say that such is the rule in this
Judgment Reversed.