Burgess v. Jacobs

Chief Justice Marshall

delivered the opinion of the court.

1. The affidavit of an attorney, to an answer filed for his client, must state that the client is absent from the county — Code Prac., sec. 512— as well ■where the answer is an amended answer as an original answer. Code Prac,, sec. 168.

This was an action by Jacobs v. Burgess and his surety, Riddle, upon an attachment bond. The petition, after stating the bond and attachment, and the discharge of the latter, specifies various particulars, of damage alleged to have been' sustained by the plaintiff in consequence of the attachment, (but for some of which, according tó previous decisions of this court, there could be no recovery in an action on the bond,) concludes with the statement, that by reason of said restraining order and suit he has been put to costs and damages at least $700, for which he asks a judgment.

Process was served upon both defendants and both answered. The first answer of Burgess was properly adjudged bad on demurrer, and his amended answer was properly rejected because it was not sworn to by Burgess, but by his attorney, whose affidavit does not state, as required by section 512 of the Code, that Burgess was absent from the county. It is indeed contended that there is no law requiring amended pleadings to be sworn to;, but the requisition of the Code on this subject makes no exception. The language in section 168 is, that the petition, answer, and reply must each be verified by the affidavit of the party. Section 143 declares that the only pleadings are the petition, the answer, and the demurrer or reply, and unless it can be said that an amended answer is neither an answer nor a pleading, it must be embraced in the requirement of tlie oath. The affidavit of the attorney or agent is, by section 512, to be received in the cases therein specified, instead of that of the party; and in some specified cases the affidavit is by other sections, dispensed with.

These proceedings upon the answer and amended answer of Burgess took place in April, 1853. At the same term Riddle, the security, filed an answer, denying several of the particular grounds of damage stated in the petition, and on his motion the cause was continued. In December, 1853, on the plaintiff’s motion the cause was continued as to the defendant, Riddle, and the record goes on to state, “and the defendant, *521Burgess, failing further to answer. It is adjudged that the plaintiff recover against him $700, the damages claimed in the petition, with interest and costs.” Burgess prosecutes á writ of error for the reversal of this judgment.

2. The Code of Practice, sec. 373, provides that trial by jury may be waived — 1. By failing to appear. 2. By -written consent, in person or by attorney, filed with the clerk. 3. By oral consent, in open court, entered on the record. Held, that where a party has appeared and plead an insufficient plea, and fails further to plead, that it is not such failure to appear as will authorize a judgment without a jury in a case where a jury should properly intervene.

It is alleged for error that the court erred in rendering judgment for the damages without the intervention of a jury, and we think this error is well assigned, and must produce a reversal. That the question as to the amount of damages in this case, is one which must be decided by a jury, unless some other mode is agreed upon, or under the particular circumstances of the case, is authorized by the Code of Practice, is not denied. But it is suggested that the proceeding was authorized by section 373 of the Code. That section provides that the trial by jury may be waived in the following manner: 1. By failing to appear. 2. By written consent in person or by attorney, filed with the clerk; and 3. By oral consent in open court, entered on the record. There is no pretense of a waiver in this case unless by the first mode. And waiving the inquiry whether the failure to appear can properly be made a conclusive evidence of the waiver and loss of the constitutional right of trial by jury, in cases in which it had existed from time immemorial, we are satisfied that the record does not establish the fact of the non-appearance of Burgess, on which the inference of waiver is to be founded. On the contrary, the record shows that he did appear at a previous term and plead, and offer an amended pleading, which was rejected. It is not even stated that he did not appear at the term at which the judgment was rendered, and in fact the judgment is rendered not for want of appearance, but for failing to plead further.

In this state of the record the rendition of judgment for the sum claimed in the petition as damages, without the intervention of a jury, and without consent, was unauthorized and erroneous, and, as several of the grounds on which this amount was claimed are *522untenable the damages adjuged are excessive even if the court had a right to assess them.

The question whether this ease as it stood with an answer by one defendant going to the merits, was in a condition in which the Code authorizes a continuance as to the party pleading, and a judgment by default against the other defendant, is one of serious importance. It arises under sections 404, 411, and 414, of the Code. But as the judgment is reversed on another ground, and as the condition of the case and of the parties may and probably will be altered on the return of the cause to the circuit court, it is not deemed necessary to decide in the present case this particular question, upon which it may be added, the views of the court are not at present entirely harmonious, nor indeed entirely settled.

Wherefore, for the errors before noticed, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent this opinion.