Rose v. Palmer

Summary

The case of Rose v. Palmer involves a petition for mandamus to require a circuit judge to grant a new trial in the case of Luton v. Rose. The original suit was commenced by attachment and resulted in a default judgment for $1,525.25. The plaintiff was allowed to remit the excess above the ad damnum, but the defendant argued that the judgment should be limited to the amount stated in the affidavit. The court ultimately decided that the judgment should be reduced to the amount sworn to in the affidavit for the writ of attachment.

Holdings

1. When the defendant has not appeared and the default is entered for failure to appear and plead, the judgment should be reduced to the amount sworn to in the affidavit supporting the attachment. If the plaintiff will not consent to the reduction, a new trial must be granted.
2. Mandamus lies to compel the granting of a new trial when a default judgment in an attachment action exceeds the amount sworn to in the attachment affidavit and the plaintiff refuses to remit the excess.

Questions Presented

1. Whether the default judgment in an attachment action could exceed the amount stated in the affidavit supporting the writ of attachment.
2. Whether mandamus should issue to require a new trial when the circuit judge denied relief from a default judgment exceeding the sworn amount of the claim.
3. Whether the plaintiff's defective affidavit of nonappearance required reversal or a new trial.

Disposition

writ_granted