118 Tenn. 571 | Tenn. | 1907
delivered the opinion of the Court.
At the March term, 1906, the case of Katie Spratlin against the United States Casualty Company in the cir
On the 2d of June, 1906, which was during the May term of the circuit court, the following entry was made in the cause referred to:
“Katie gpratlin v. U. S. Casualty Co.
“This cause came on to be heard on the motion of defendant to set aside the judgment by default heretofore entered, to wit, on May 12, 1906, and to reinstate the cause, which said judgment by default was granted on the statement made by counsel for plaintiff that it would be set aside if any counsel' appeared and made application therefor. And counsel for plaintiff having appeared in open court and assented thereto, it is accordingly ordered and adjudged that said judgment by default be set aside and this cause reinstated; and defendant is allowed thirty days within which to plead.”
On October 24, 1906, a petition for mandamus was filed against the clerk, and that petition is the foundation of the present action.
The petition, after reciting the recovery of the judgment by default and the order setting it aside, further alleges that the last-mentioned order was made without petitioner’s consent and over her protest; furthermore, that the judge had no power to enter the order, since the term of court at which the judgment by default was rendered had already terminated.
It further alleges that on the 16th of October, 1906, the petitioner demanded of the clerk of the circuit court a writ of fieri facias, but the clerk refused to issue it. Thereupon the petitioner prayed that a mandamus be issued, commanding the clerk to issue the writ.
The United States Casualty Company was not made a party to the proceeding.
A copy of the record in the case in which the fi. fa. was sought accompanied the petition, and from it appeared the facts connected with the judgment by default and the order setting it aside, and the other facts above detailed. The declaration in that cause was as follows:
“The plaintiff, Katie Spratlin, sues the defendant, United States Casualty Company, a corporation doing business in the State of Tennessee, for the sum of five thousand dollars ($5,000) with interest thereon since October 16, 1905, and for cause of such action shows:*576 That the defendant corporation is doing business in Tennessee, with power to insure the lives of persons and to issue its policies therefor. That, in consideration of the premium then and there paid by plaintiff to the defendant, the defendant did, on the 5th day of January, 1904, issue its policy to the plaintiff upon the life of William 'A. Spratlin, which policy is numbered 168,589, and denominated ‘Peerless Policy of Personal Accident Insurance,’ which policy is here to the court shown. That by said policy of insurance, or contract, the defendant obligated, promised, and hound itself to pay to the plaintiff, Katie M. Spratlin, wife of W. A. Spratlin, the sum of five thousand dollars ($5,000) upon satisfactory proof of the death of William A. Spratlin. While said policy was in full force and effect said William A. Sprat-lin received á bodily injury, effected exclusively and directly by external, violent, and accidental means, in-, dependent of any other cause, resulting in the immediate death of said William A. Spratlin, due notice of which was given the defendant, as provided in said contract. That according to the terms of said contract or policy the payment of said $5,000 was demanded of the defendant, but the same was refused, and the defendant still fails and refuses to pay the same without cause. That said failure and refusal to pay said sum of $5,000 by the defendant is not in good faith, and the plaintiff has been forced to an additional cost of $1,250. Plaintiff therefore sues the defendant for the sum of $6,250, with interest thereon since the 16th day of October, 1905, as*577 provided by said contract and tbe laws of Tennessee; and tbe plaintiff demands a jury to try tbe issues involved in this cause.”
The circuit judge declined to issue tbe alternative writ prayed for in tbe petition, and dismissed the petition. Upon this action of tbe court tbe petitioner appealed to this court, and has here assigned errors.
During tbe argument a question was suggested concerning tbe failure of tbe plaintiff to call out the defendant in the original cause before the default was taken.
Good practice requires that the party should be called out, and that entry be made of the fact; but failure to do this will not make the judgment void. 6 Amer. & Eng. Enc. of PI. & Pr., pp. 78, 79. The rule is probably more stringent when the default is entered on an appearance bond in criminal cases as a preliminary step to the issuance of a scire facias. State v. Grigsby, 3 Yerg., 280; White v. State, 5 Yerg., 183, 184.
In all cases where the default is taken upon an instrument showing a present indebtedness, as a bond, bill, or note, or liquidated account signed by the parties, so that the amount may be ascertained by simple calculation from the papers, judgment may be entered at once upon default taken without the intervention of a jury; but in all other cases a jury is required to fix the amount. Masonic, etc., Association v. Cook, 3 Head, 313; Williams v. Bank of Tennessee, 1 Cold., 44, 45, 46; Miss., etc., R. R. Co. v. Green, 9 Heisk., 588, 593; Beeler v.
Manifestly, if the suit be based upon such a bill, bond, or note as aboye referred to, but there is no such instrument filed in the cause, there are no “papers” from which the calculation can be made; and such was the case in which the judgment by default was 'entered. A jury was therefore, under the facts stated, necessary before judgment could be entered for anything more than nominal damages. It is true that profert of the policy was made in the declaration; but this only means, not that the paper is in court, but that the plaintiff has it, and holds himself in readiness to produce it upon demand. Caruthers, Hist, of a Lawsuit, 184, 186; Insurance Co. v. Thornton, 97 Tenn., 1, 40 S. W., 136.
The judgment was entered for $5,172 without a jury. It would therefore be wholly improper for us to award the writ of mandamus to compel the issuance of an execution on such a judgment, since the court would thereby lend its aid to the effectuation of a palpable injustice.
Moreover, the proper parties are not before the court. The person whose interest is most vitally concerned, the United States Casualty Company, is wholly omitted. All persons interested should be made parties. State, ex rel., v. Willett, 117 Tenn., 334, 97 S. W. 299; Powell v. People, 214 Ill., 475, 73 N. E., 795, 105 Am. St. Rep., 117; City of Austin v. Cahill (Tex. Civ. App.), 88 S. W., 536.
In addition to the foregoing, it is clear the clerk did
If the petitioner desired to question the entry setting aside the judgment by default, she should have brought to this court by the writ of certiorari the case in which the entry was made, and the error, if any, could have been corrected in that form. .Possibly, also, the action of the court could have been corrected by appeal or writ of error.
The learned counsel for petitioner has cited numerous authorities (Bronson v. Schulten, 104 U. S., 410, 26 L. Ed., 797; Anderson v. Thompson, 7 Lea, 262; State v. Dalton, 1 Cates, 549, 72 S. W., 456; Alice Johnson v. V. C. Russell, MS., Jackson, April Term, 1895), to the effect that a judgment cannot be set aside at a subsequent term of the court. Without controverting these authorities at all, we only say that the question cannot be brought before this court in the. manner attempted. Mandamus is an extraordinary writ, and can be resorted to only when other remedies fail. Ex parte Connecticut Life Ins. Co., 26 L. Ed., 561; 2 Spelling, Inj.
The foregoing objections are insuperable obstacles in the way of the maintaining of the petition.
It results that there is no error in the judgment of the court below, and it must be affirmed.