Parties to Action

No Judgment by Default.

Jewish jurisprudence, both in Biblical and in Talmudic times, attached the greatest importance to the laws of property and to their faithful administration by the judges. In regard to the manner of conducting civil suits the Pentateuch contains very few hints. But in Deuteronomy 1:16 the judges are told, "Hear . . . between your brethren"; and Deuteronomy 19:17 declares, "Both the men, between whom the controversy is, shall stand before the Lord." These and other passages support the Talmudic rule that judgment can be pronounced only against a defendant who has appeared; there is no such thing as "judgment by default"—condemnation of the accused because he has not appeared before the court to make defense. This seems in modern times a great defect in procedure, leading to much needless friction; but less than a hundred years ago the English court of chancery had the same disadvantage to contend with: it acquired jurisdiction over the defendant only by his answer, and the latter was compelled to answer the complainant's bill, even though he had nothing to say in defense. But an exception to this rule has been shown under the head of see see FOREIGN ATTACHMENT—proceedings by a bond creditor against the property of an absent defendant, an innovation arising from the necessities of a later age. In fact, the Talmud suggests (B. Ḳ. 112b) that at least upon bonds and in action for the recovery of deposits there should be judgment and execution without appearance. However, there could not well be a judgment by default, as there was no written complaint.

Job's wish (31:35), "Oh that . . . mine adversary had written a book"—meaning a "libellus" or formal complaint—indicates that in his day there were written pleadings. But in the procedure known to the Talmud the allegations of plaintiff and defendant are made by word of mouth in the presence of the judges, and are recorded by the clerk, much as were the pleadings in the Anglo-Norman courts in the days of the Plantagenets. The codes deduce from the Mishnah the rule that no written pleadings can be required: "All judicial writings may be written only in the presence of both parties, both to pay the fees of the writers; R. Simeon ben Gamaliel declared that two copies should be made, one for each" (B B. 10:4). For the choice of the court which shall try a civil case JURISDICTION.

Sittings of Court.