43 Ala. 95 | Ala. | 1869
The question, presented by the bill of exceptions, is, whether a judgment by default can be rendered, when the defendant has appeared, by leave of the court, and filed his pleas, though not in the proper time. The law prescribes the time within which pleas shall be filed, but it is within the province of the court,- by rules of practice, to direct in what manner the omission to do so may be taken advantage of, or cured, so as to subserve the ends of justice.
The ninth rule of practice in the circuit court provides that “ defaults may be entered on the docket in vacation, which shall relate to the preceding term, and advantage thereof may be claimed at the next term.” — Eevised Code, p. 820. When this is done, the party claiming the benefit shall not be bound to receive any plea or pleading of the party so in default. But the court, on timely application, may set this judgment aside, on affidavit showing merits and sufficient matter of excuse. If, however, before the default is entered, either in term time, or in vacation, the defendant appears and files his pleas, he has a right to be heard on the merits of his case.—Woosley v. Memphis & Charleston R. R. Co. 28 Ala. 536. At the time the judgment by default was rendered in this case, the defendant was in court by his attorney, by leave of the court, and his pleas were on file. It was not in the power of the court to ignore them. The rules of practice, though necessary for the proper transaction of business, should be strictly construed when they tend to preclude a trial on the merits of a cause.
The motion to dismiss the bill of exceptions, because it does not appear that it was signed in term time, or within ten days thereafter by a written agreement, is overruled, because we think it does appear from the transcript that it was signed during the term.
For the error of the court in rendering the judgment by default, the judgment is reversed, and the cause remanded.
