Nabors v. Nabors

| Ala. | Jan 15, 1835

By Mr. Justice Hitchcock :

This is an action of detinue, brought by William Nabors, against the plaintiff in error, for two negro slaves. The writ was issued on the first day of November, 1830; and is made returnable on the “fifth Monday after the fourth Monday in February,'' then next, when it should have been, fifth Monday after the fourth Monday in March then next The negroes were replevied by the defendant — and bond given under the statute, by the defendant — who kept possession of the negroes, The condition is such, as is usual in such cases. At the May term, 1831, which was the return term, of the writ, it being the first Circuit Court, by law, to be held after the issuing of the writ, the clerk slates the following entries : “At the May term, 1831, of said Court, the following appearances were entered, to wit:

There is nothing else to show any appearance by the defendant, by himself, or by counsel. The plaintiff filed his declaration at this term, and the cause was continued.

At the October term, following, the plaintiff moved the Court to reject a plea, which appears to have been found among the papers of the suit, because there was no endorsement by the clerk of the Court, showing that the plea had been filed within the time allowed for pleading. This plea -is entitled of the May term, 1831, of the Court, was sworn to on the 29th of October, .1831, and is a plea in abatement to the writ, by the defendant in his own proper person, and alleges for matter of abatement, — that by the act of the 16 th of January, 1830, the Circuit-Court for Shelby County, -was required to be held on the fifth Monday after the 4th Monday in March, and not on the 5th Monday after the 4th Monday in February, as is alleged in the writ; and that, because the proper term of the said Court is not set forth in the writ, he prays that the same may be quashed. This plea was rejected by the Court; and the defendant refusing to plead to the action, a judgment by -default was taken, and a writ of inquiry was awarded, and judgment for the plain-' tiff for the negroes, and for damages for the detention.

The defendant has brought the case to this Court, by writ of error ; and has assigned for error, the insufficiency of the writ, it being made returnable at a time when there was no Court, ‘ ■ ■'*

It is admitted the writ is defective; but the defendant in error insists that the defect has been cured by the appearance by the defendant, - by himself and counsel. '

1. Because the giving of the replévy bond, is an appearance inlaw.

2. Because the statement of the- clerk, Shews that Mr. Mardis was substantially entered as his counsel at the return term; and,

3. Because the filing of the plea in abatement, is a sufficient appearance,

The Court does not consider either,; .or all of the above reasons a sufficient-answer tdktó^óbjections to the writ. The giving of the replevyffioñd, was a matter necessary to recover possession <^fe&iegroes, who had been taken into the custody of-the theriff by viiv tue of the writ, and without that thejfstfolffid, have gone into the possession of the plaintiff, who «ad given the necessary bond on procuring the writ - It was riot such a voluntary act as manifested an intention to waive the defect of the writ, and cannot be insisted on as such.

The alleged appearance of Mr. Mardis, is not such as is required by the first general rule, adopted in July, 1830, for the government of proceedings in the Circuit Court. That rule requires"the clerk to keep a “ Book of Appearances,” in which,’ counsel desiring to appear in any suit, shall make-hr said book, or cause the clerk to make, an entry of hi's name, stating the cause in which he wishes to appear,The party or person for whom he appears, and the date of the entry. Such entry is considered an appearance.

The statement in this record does not furnish any one of these particulars, in the manner pbinted out by the rule. It does not shew by whom, when, or on what the entry was made. 1 It does not come up to the decision in the case of Cain vs. Sullivan,^a cited by the defendant’s counsel; for there, it appeared, the entry was on the docket. This rule was intended to remedy the mischiefs growing out of that decision; and the'Court cannot relax its provisions by intendment. An appearance made and certified un.der this rule, would bind the party. It would be a voluntary appearance, and would cure all defects of an anterior date, not taken advantage of in time.

Néith'er can the Court consider the appearance by the defendant, as set forth in the effort to get the benefit of the plea in abatement, as such voluntary appearance as will, in the event of failure, cure the defect.- To say that a party who appears to assert a defence upon an alleged defect in the proceedings, not going to the merits of the action, shall be precluded from having the benefit of an examination in a higher tribunal, into the validity of that defence, because he fails, in his efforts below, would be unjust in the extreme. By this mode of reasoning, if he ■fails, he has cured the defect by making the point, and if he pleads over, he cannot assign it for error here. He is, therefore, virtually precluded from trying his defence at all. If the defect is such an one as is properly the subject of an assignment of error, his'having failed in endeavoring to assert his right in the Court below, ought not to preclude his being heard here.

But the Courtis not satisfied that the defect in this writ, is such, as can be assigned for error in this Court. By the act, regulating the issuing of process,^b ''All original process shall be issued by the clerk, and shall be returnable to the first day of the term, be served five days before the term; and where the process issues within five days of the beginning of a term, it shall bo made returnable to the next term after that then to beheld;” and, “ all writs and process issued, made returnable, or executed, in any other manner, or at any other time, may be abated on the plea of the defendant.”

It will not be contended, that an error in the return of a writ, makes the writ de facto, a nullity: it is defective, and may be abated, by plea. But if it have. all the other essential qualities necessary., to constitute a good writ — -if it be signed and tested by the clerk— be directed to the sheriff — describe the Court properly — have proper parties — and contain a-proper cause of action, it shall not be rejected by the Court ex of-ficio. The statute has not declared’such' a writ void. It contemplates the possibility of errors) 'in thé acts of the clerk, and provides a remedy,'by which the defendant shall be permitted to avail himself of the defect, and get the benefit of the delay.

By reference to Bacon’s Abridgment,^a it will be seen, that such acts as make a writ void, are those which shew that nothing can cure the defect — such, as that no judgment could be rendered thereon. The term used in our statute, that a writ thus defective, may be abated, is understood by the Court, to be sjmony-mous with must be abated; and excludes the idea- of any other mode of taking advantage of the defect. Where a party has been served with process, it is a notice to him, which puts him upon his defence. If he discover a defect which renders the writ void,, he may disregard the. process; and if judgment be rendered against him below, he may come, here and get redress. But if the defect be only an abateable one, by plea, he must apply himself -to his defence at the proper time, in the proper place, and by the mode prescribed by the statute. And if he neglect those requisitions, the law considers him as having waived his privilege; and this Court, sitting here to revise the proceedings of the other tribunals, is not author-ised to consider itself at liberty to overturn proceedings, of which those tribunals have had full cognizance, for technical defects, when the party has negligently, or pertinaciously refused to make his defence at the proper time, and after a full opportunity has been afforded him. This Court has often looked into a writ for the purpose of amendment; but no case is to be found, where it has reversed proceedings upon an assignment reaching only to an abateable defect in a writ, where all other proceedings are regular.

In this case, the writ was served, and was returnable before the regular term. The declaration was filed in time — the defendant was fully apprised of it— but for a technical defect would have appeared by counsel — had a coritinuance — attempted to get the benefit of the plea of abatement; but does not pretend he was in time, and does not assign as error, the rejection of his plea — is required to plead over — refuses — stands by and permits a judgment, without attempting a defence — and has now come here, and wishes to avail himself of a defence, which, at no time is favored by the law, and which has, so far as I am .acquainted, never been allowed in a Court of Error ; and which, while this Court is, as at present composed, will not be allowed.

Let the judgment be affirmed.

a Ala. Rep 31.

b Aik. Dig.278.

a T t'e, Abateman., letter K.