| Ark. | Jul 15, 1878
The opinion of the court was delivered by
W. H. Malony commenced an action against E. T. Eace in the district court of Elk county on two promissory notes, and caused an attachment to be levied on certain personal property. Defendant, being a non-resident, was served by publication. Chas. H. Eace, brother of the defendant, filed his interplea, claiming the property attached. On the trial of this interplea, judgment was rendered against him, and in the original action judgment was rendered by default against the defendant for the am hunt of the notes, and an order also entered for the sale of the attached property. To reverse these two judgments this proceeding has been instituted, and to the one record two separate petitions in error have been attached. Waiving any question as to the regularity of this procedure, we have examined the record and are constrained to hold that no error is presented of which either plaintiff in error can avail himself. With i’egard to the trial of the interplea, we remark that the record discloses no exceptions to the rulings of the court concerning the admission or rejection of testimony, or in respect to the instructions. Any error therein is therefore to be taken as waived. A motion for a new trial was made and overruled, and to this ruling exceptions were taken. The only grounds open to our examination on this motion are, first, that the verdict was against evidence; and, second, accident and surprise which ordinary prudence could not have guarded against. An examination of the testimony satisfies us that the verdict of the jury must be sustained, so far as the first ground is concerned, upon the authority of K. P. Rly. Co. v. Kunkel, 17 Kan. 145" date_filed="1876-07-15" court="Kan." case_name="Kansas Pacific Railway Co. v. Kunkel">17 Kas. 145; and Callison v. Smith, 20 Kan. 28" date_filed="1878-01-15" court="Kan." case_name="Callison v. Smith">20 Kas. 28. There was enough testimony to justify the jury in finding against the claim of the interpleader. Accident and surprise are claimed by reason of these facts. Two witnesses testified to certain statements made by the parties in charge of the property subsequently attached. These parties were residents of the county, and one at least had been consulted by the counsel for. the interpleader prior to the trial as to the facts within his knowledge. Neither was called as a witness on the trial, and so far as appears, no effort was made to secure their presence. No delay was asked pending the trial for the purpose of securing their attendance to contradict the testimony given of their statements. On the motion for a. new trial their affidavits were read in which they denied making the statements imputed to them by the witnesses, and also the affidavits of the interpleader and his counsel that they were surprised by such testimony. We think this is not a sufficient showing to justify the court in disturbing the verdict. The parties placed in charge of the property were parties likely to know of any change in the title, and the interpleader claiming to have purchased from the defendant several months before the attachment might well have anticipated testimony in that direction. Indeed, one of the parties, the interpleader testified, was sent out by himself, after his purchase, to take charge of the property. And whether the testimony of these statements was strictly competent or not, no exception was taken to its admission. Reasonable prudence could have guarded against any injury from this source.
With regard to the judgment by default^ it is urged that the affidavit and notice of publication are both defective. The affidavit states.the cause of action to be founded on two promissory notes. This is correct. Though not negotiable, .the instruments sued on are promissory notes.
Again say counsel: The publication notice does not describe the property taken, and say that a judgment in rem will be rendered against it. It seems that a description of the property is necessary, and a defective description would be fatal.
The only remaining question is this, Was the judgment prematurely rendered? The facts are these: The publication notice calls for the answer to be filed by or before the 13th day of October, 1877. The first day of the October term of the Elk county district court is fixed by law for the fourth Monday of October, 1877, which was the 22d day of October of that year. . That left only nine days between the answer- day and the first day of court. Judgment was entered by default, on October 26th. Was this error? It will be conceded, under the authority of Gapen v. Stephenson, 18 Kan. 140" date_filed="1877-01-15" court="Kan." case_name="Gapen v. Stephenson">18 Kas. 140, that if an answer had been filed on October 13th, the case would not have stood for trial at the October term. Does the same rule obtain when the case is in default? We think not. Where no answer or demurrer is filed, no issue, either of fact or law, arises. (Gen. Stat., p. 679, §§262, 263.) A trial is a judicial examination of the issues in the case. (Gen. Stat., p. 680, §265.) Where there are .no issues, there can be no trial. Counsel relies upon §313 of the code, as amended in 1871, (Laws 1871, p.277,) which reads:
“A trial docket shall be made out by the clerk of court at least twelve days before the first day of each term of the court, and the actions shall be set for particular days, in the order hereinafter stated, and so arranged that the cases set for each day shall be tried as nearly as may be on that day, namely: First, Issues of fact to be tried by a jury. Second, Issues of fact to be tried by the court. Third, Issues of law. If the defendant fails to answer or demur, the cause, for the purpose of this section, shall be deemed to be at issue upon questions of fact; but in every such case, the plaintiff may move for and take judgment, as he is entitled to on the defendant’s default, on or after the day on which said action shall be set for trial.”
Only for the purpose of this section is a case on default deemed to be at issue, and at issue upon questions of fact. But the purpose of this section is merely the arrangement of a trial docket — the distribution of cases to particular days. It does not purport to determine what cases are triable, but only declares in what manner triable cases shall be distributed. And in such distribution, cases on default are to be considered cases at issue on questions of fact, and placed in the first or second class, according to the character of the cause of action alleged in the petition. That this section does not attempt to determine what actions are triable, is made more apparent from § 315, also amended in 1871, which reads:
“Actions shall be triable at' the first term of the court after the issues therein by the times fixed for pleading are or shall have been made up ten days before the term. When issues of law are made up either before or during a term of court, but after the period for preparing the trial docket of such term, the clerk shall place such actions on the trial docket of that term; and when any demurrer shall be adjudged to be frivolous, the cause shall stand for hearing or trial in like manner as if an issue of fact had been joined in the first instance. But the court may in its discretion fix specially the time when such causes shall stand for trial.”
By this, actions are triable although the issues are joined two days after the trial docket is made up. Indeed, as the trial docket is to be made up at least twelve days before the ■term, it may in fact be made up many days before it is settled what cases are triable; and where a frivolous demurrer is filed during the term, the court may order a trial at the same term. Evidently, if after overruling a frivolous demurrer, the court has power to order the trial to be had at the pending. term, it ought to have power to dispose of the case when no defense, not even a frivolous one,-is interposed; and turning to section 314, as amended in 1871, we think that gives this power. Such section reads:
“The trial of an issue of fact and the assessment of damages in any case shall be in the order in which they are placed on the trial docket, unless by the consent of the parties or the order of the court they are continued or placed at the heel of the docket, unless the court in its discretion shall otherwise direct.”
Now, as to issues of fact, this section is doubtless limited by the succeeding section heretofore quoted, but as to assessment of damages such section furnishes no limitation. And, indeed, in the absence of some statutory limitation we conceive the rule would be, that a judgment upon default might be rendered at any time during any teim of court. Court being in session, and the defendant in default, why may not judgment be entered .immediately ? There is no reason in the nature of things to the contrary, and no statutory restriction, except that when placed on the trial docket it should be on or after the day on which it is there set for trial.
On the whole case, therefore, we conclude that no error appears on which either plaintiff in error can avail himself, and the judgment must be affirmed.