Rather v. Owen

1 Stew. 38 | Ala. | 1827

JUDGE S AFFOLD

delivered the opinion of the Court.

When this judgement was rendered, the term of the Circuit Court of Jefferson county was limited by law to six judicial days. The statute regulating the time of pleading, directs that the declaration shad be filed within the three first days of the term to which die writ is made returnable, that the defendant shall plead or demur within the three first days after the time allowed for filing the declaration ; otherwise, the plaintiff may have judgement by default; that the Court may enlarge the time for pleading, and that in every case, the pleadings shall be made up during the term to which the process is. returned, unless .the time be extended by consent, or by direction of theíCourt. ^a This latter clause is the only part of the statute in which there can be any doubt, but according to it, the defendant is allowed till the last minute of the term to file his plea. The different provisions of the statute in relation to the time of pleading, can be reconciled onlv by the conclusion that final judgement by default, or nihil ¡licit, cannot be taken at the return term, unless the term continues longer th in one week.

Let the judgement be reversed, and the cause be remanded.

a Raws Aia. 477;