THOMAS ROSE et al., Plaintiffs in Error, vs. THOMAS D. BARR, Defendant in Error, 2 Wis. 492

By the Court, Smith, J. The rendition and entry of judgment in this case are clearly irregular. The cause was not at issue so as to fall under Eule 16 of the Circuit Court, in relation to the taking of inquests at the circuit, and hence the notice of trial and inquest, served April 17, 1852, is not applicable to -a proceeding of this kind.

Eule 16 provides that “Inquests in causes where there are issues in fact, may be taken at the Circuit Courts out of their order on the calendar at the opening of the court, on any day after the first day of the circuit, or at such time as shall be prescribed by the presiding judge at the opening of the term ; provided, the intention to take an inquest is expressed in the notice of trial, and a sufficient affidavit of merits shall not have been filed and served ; and when an inquest shall have been regularly taken, the same shall not be set aside except upon the payment of the.costs thereof.” The plaintiff commenced his proceedings by attachment.

The defendants, in pursuance of the statute, traversed the affidavit, and upon the hearing, the court found for them, and gave judgment for six cents damages. The defendants then interposed what they denominated a plea in abatement, for misjoinder of parties defendant. Previous to the April term the plaintiff gave notice of trial and inquest in the usual form. At the April term the defendant’s plea was stricken from the files.

The plaintiff then proceeded to empannel a jury to assess the damages, in the absence of the defendants and their counsel, and without having given any notice of such inquest, except the usual notice of trial &c., which, it seems, did not warrant such proceeding.

Even admitting that the cause was in a condition for an assessment by the clerk, of damages, or a writ of inquiry, yet, inasmuch as the defendants had appeared in the cause, they were entitled to notice according to the provisions of the thirteenth rule of practice in the Circuit Court. • It is probable that in the hurry of circuit practice, a wider scope was given to Rule 16 than its framers intended, and than its language will justify, and thus the counsel for the plaintiff was led into error.

The judgment of the Circuit Court is reversed with costs, and the cause remanded for further proceedings, according to law.