Proceedings in absence before expiry of the induciæ.
Click here to view a pdf copy of this documet : PDF Copy
John and James Wilsons having brought an action for payment against Lochhead, called their summons, by mistake, before the last diet of compearance, and got a decreet in absence. Having discovered the error, they called it anew after the induciæ were run, and obtained decreet in absence.
Lochhead, in a reduction of this decreet, among other grounds, insisted, That it was void, on account of the former irregular proceeding. By calling the summons, and obtaining the decreet before the induciæ were run, the authority of the summons was exhaused, and the pursuers could not thereafter remedy the defect at their own hand, as the proceedings were the act of the Court. They ought either to have raised a new summons, or applied to the Court to rectify the error.
Answered for the defenders: The proceedings previous to the running of the induciæ must be held pro non scriptis, being intrinsically void; and the authority of the summons to call for the defender's appearance, after the induciæ were run, remained the same as ever. It was sufficient that the pursuers passed from these proceedings, and there was no necessity to make any application to the Court to enable them to do so. There was no cause in the Court, at that time, on which to found such application. Spence contra Smith, 2th February 1772, supra.
The Court were of opinion, That the pursuers were entitled to consider the proceedings previous to the running of the induciæ as intrinsically null, and to call their summons as if these had not existed, therefore, “repelled the reasons of reduction of this decreet founded upon these proceedings.
Act. Cullen.Alt. Ilay Campbell, Claud Boswell.
Fac. Col. No 23. p. 38.
