An office judgment in an action of ejectment does not become final without the intervention of the court or a jury; but there ought, in every such case, to be an order for an enquiry of damages.* These were three actions of ejectment, brought in the Circuit court of the city of Richmond, by the appellees against the James River and Kanawha Company, to recover certain parcels of ground in the city of Richmond. The facts in relation to the only point decided by this court are stated in the opinion of Judge Moncure. A. Johnston and Lyons, for the appellant. MONCURE, J. delivered the opinion of the court: These three cases are precisely alike, and present the same questions for decision. They were actions of ejectment brought in the Circuit court of the city of Richmond. In each of them the declaration was filed at rules, on the first Monday in February, 1860, with proof of service of notice thereof according to law; and there * See the statutes quoted in the opinion of Judge Moncure. 1863. October Term. James River and Kan. Co. V. Lee. Same V. Wortham. Same upon was entered a rule upon the defendants to appear and plead at the next rule day. At which day, to-wit, on the first Monday in March, 1860, the defendants having failed so to appear and plead, though duly served with a copy of said rule, their default was entered, and judgment given against them. At the next term of the court, and after the fifteenth day thereof, the defendants appeared and moved the court for leave to plead to issue, and to set aside the office judgment; but the court, being Macfarland of opinion that the office judgment became final on the fifteenth day of the term (under section 44 of chapter 171 of the Code), not having previously been set aside, overruled the said motion; to which opinion and decision of the court the defendants excepted; and they afterwards applied for and obtained a supersedeas to the judgment. It is contended that the judgment is erroneous on one of two grounds, viz.: 1st, that section 44 of chapter 171 of the Code does not apply to an action of ejectment; and, if it does, 2dly, that it was competent for the court, after the fifteenth day of the term, for good cause shown, to permit the defendants to plead to issue, and set aside the office judgment; and good cause was in fact shown. We will proceed to consider the first of these grounds, to-wit, whether the said section applies to an action of ejectment. It is in these words: "Every judgment entered in the office in a case wherein there is no order for an enquiry of damages, and every non-suit or dismission therein, shall, if not previously set aside, become a final judgment, if the case be in the General or a Circuit court, of the last day of the next term, or the fifteenth day thereof (whichever shall happen first), and if it be in a County or Corporation court, of the last day of the next quarterly term, and have the same effect, by way of lien or otherwise, as a judgment V. 1963. October Term. James River and rendered in the court at such term. Every such judgment for any plaintiff shall be for the principal sum due, with interest thereon from the time it became payable Kan. Co. (or commenced bearing interest) till payment, unless it be in such action as is mentioned in the 11th section of chapter 144, in which case it shall be according to that Wortham. section." V. Lee. Same Same The above section, it will be perceived, is expressly Macfarland confined to office judgments in cases wherein there is no order for an enquiry of damages, and the question at once arises, What are those cases? The next two preceding sections answer the question. The 42d section, providing for an office judgment against a defendant in default, directs that "judgment shall be entered against him, with an order for the damages to be enquired into, when such enquiry is proper." The 43d section is in these words: "There need be no such enquiry in an action of debt upon any bond or other writing for the payment of money, or against the drawer or endorsers of a bill of exchange or negotiable note, or in action of debt or scire facias upon a judgment or recognizance." Then follows the 44th section, before recited, commencing with the words, "Every judgment entered in the office in a case wherein there is no order for an enquiry of damages"; thus obviously referring to the cases mentioned in the 43d section, and having the same meaning as if the 44th section had commenced in these words: " Every judgment entered in the office in an action of debt upon any bond or other writing for the payment of money," &c., as set out in the 43d section. That the 44th section was intended to be confined to those cases is further shown by the latter branch of the section, which declares that "Every such judgment for any plaintiff shall be for the principal sum due, with interest thereon from the time it became payable," &c. The terms "every such judgment," here used, relate to the terms, every judgment," &c., in the former branch. of the section; and the words, "shall be for the principal sum due," &c., are strictly applicable only to such actions as are mentioned in the 43d section. 1863. October Term. James River and Kan Co. V. Lee. Same V. Same The 43d section is the only law which dispenses with the necessity for an enquiry of damages; which, wortham. therefore, is necessary in every case not enumerated in that section of an office judgment against a defendant. Macfarland Before the enactment of that section, such an enquiry was dispensed with only in an action of debt upon a bond, bill, promissory note, or other writing for the payment of money or tobacco. In every other action in which a judgment was obtained in the office by the plaintiff, an order for an enquiry of damages was made at the same rule day at which the conditional judgment was confirmed. 1 Rob. Pr., old ed., p. 170. And the law declared that "all judgments by default, obtained in the office for want of appearance or plea, in which no writ of enquiry shall be awarded, and which shall not be set aside on some day of the next succeeding term, and all non-suits and dismissions obtained in the office and not so set aside, shall be considered as final judgments of the last day of the term, and executions may issue thereupon accordingly," &c. 1 R. C. 1819, p. 508, 79. There have been several decisions of this court upon the construction of that law, most of which are stated in 1 Rob. Pr., cited supra. In Hunt, &c. v. McRae, 6 Munf. 454, the declaration was in debt for money lent, but said nothing of any contract in writing, and a judgment was confirmed in the office, which became final. This court was of opinion that the judgment was erroneous, in being made final on a declaration claiming a debt due for money loaned, and not alleged to be founded on any specialty, bill, or note in writing. It was therefore reversed, and 1863. October Term. James River and Кар. Со. V. Lee. Same V. the cause remanded for a writ of enquiry to be execu ted, unless the defendant should plead to issue. In Metcalfe v. Battaile, Gilm. 191, it was held that a negotiable note was not, as to the endorser, a note for the payment of money, within the meaning of the law in question; and that, consequently, judgment could not Wortham. be rendered in such case without the intervention of a jury. That was an action of debt against the endorser of the note, whose contract, the court said, was not a writing for the payment of money absolutely, but a collateral contract to pay it under certain circumstances. Same Macfarland In Hatcher v. Lewis, 4 Rand. 152, the joint action of debt was brought against drawer and endorsers of a negotiable note, and it was held that an office judgment could not be confirmed against all or either of the defendants without a writ of enquiry. In Rees v. Conococheague Bank, 5 Id. 326, the action. was against the maker of a note, which was protested for non-payment, and the protest had this endorsement upon it: "$550 has been received, at sundry times, on account of the within note. July 19th, 1819." An office judgment was entered for the whole amount of the note, without allowing the credit. There was reason to believe that the plaintiff intended to contest the credit. This court was of opinion that "a final judg ment, when no plea is filed, may be rendered in the office at rules for principal and interest, when the action is founded upon any instrument in writing for the payment of an ascertained sum of money. But if the plaintiff, by any paper filed by himself, shows that the defendant is entitled to a credit, the judgment ought either to be entered subject to such credit, or, if the plaintiff refuses to take a judgment in that way, a writ of enquiry should be awarded." And accordingly the judgment was reversed, and the cause remanded, with direction to award a writ of enquiry. |