8 Fla. 446 | Fla. | 1859
delivered the opinion of the Court.
This was an action of trespass, brought by the defendants in error against the plaintiff in error for the seizure and taking of a quantity of lumber and timber at their
At the fall term of 1856, the parties appearing by their counsel, another default, as before, for want of a plea was taken, on motion of plaintiff’s counsel, and a writ of enquiry awarded. The defendant then claimed the right to be heard upon the enquiry as to the amount of damages, to cross-interrogate witnesses and to argue the case before the jury, which motion was denied by the Court, and it was ruled, “ that defendant is out of Court by reason of his default, and cannot he further heard in the cause.” To which ruling the defendant’s counsel then and there excepted, and thereupon brings his writ of error. The single question here presented is in regard to the correctness of the ruling of the Court below in reference to the defendant’s right after default to be heard upon the execution of a writ of enquiry as to the amount of damages sustained. The universal jmactice of our Circuit Courts has been, so far as we know, contrary to the rule laid down by the Court below in this case, and this point of practice does not appear to have been heretofore made before this Court for the reason, perhaps, that the rule prevailing in the Circuit Court has been so generally acquiesced in, and we think such practice consonant with reason, justice and law. The rule in chancery is, that whatsoever is well pleaded in the bill and not denied in the answer is taken and admitted. This rule, with a change of terms only, it may be
The whole doctrine is so fully laid down in Archbold’s Practice, 2 voh, p. 25, that it seems needless to go further than cite his valuable work. He says, that the plaintiff’s counsel is bound to give notice to the opposite party of the execution of a writ of enquiry at the peril of losing his costs, and further, that “all the plaintiff has to prove or the defendant is pernmtted to controvert is the amount of damages.” Thus it seems that the practice of the common law Courts is well settled on this question. It is one of frequent occurrence and much importance with us, and we trust that this decision may have the effect of rendering definite and uniform the practice of our Circuit Courts in this respect. The several cases cited in argument from the reports of our own Court relate to the effect of abstract instruction, not calculated to mislead the jury, and to the manner in which the subject matter of exception should be made a part of the record, to which we are confined in our review of the case by the bill of exceptions, and do not, as it appears to us, touch the question under consideration. Nor do we consider it possible for the appellant, after the Judge below ruled him out of Court and decided that he had no right to appear for any purpose, upon the execution of the writ of enquiry, to have supervised that proceeding and excepted at each successive stage of it, TTis writ of error is founded upon the denial of his right, and [he cannot be prejudiced for failing to exercise the very privilege which the Court had refused to allow him
Let the judgment be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.