T. E. CESS-PELHAM, the Father and Legal Guardian of CHARLOTTE R. PELHAM and SAMUEL E. H. PELHAM, Minors, Appellant, v. LOUISE M. PELHAM, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL

CIRCUIT, SINOE COUNTY.

Argued January 22, 1934. Decided January 26, 1934.

1. Whenever a complaint is filed in which the plaintiff claims title to real property, a copy of the document upon which title is based should be filed therewith.

2. A judgment by default should not be rendered against a defendant who has appeared and pled, especially in suits in equity.

3. Nor can a final judgment be, in any such case, rendered upon a judgment by default without having had proof of the allegations set out in the pleadings.

This was a bill in equity brought by the plaintiff, now appellee, in the Circuit Court of the Third Judicial Circuit, Sinoe County, for the cancellation of a deed. Judgment Was rendered against the defendant by default. On appeal to this Court, judgment reversed and case remanded with permission to the plaintiff to withdraw and amend her complaint.

Nete-Sie Brownell [1] for appellants. C. L. Simpson and Anthony Barclay for appellee.

MR. JUSTICE GRIGSBY delivered the opinion of the Court.

This is a case commenced in the equity division of the Circuit Court, Third Judicial Circuit, Sinoe County.

The records show that Louise M. Pelham, the wife of T. E. Cess-Pelham, filed a petition in equity against T. E. Cess-Pelham, the father and legal guardian of Charlotte R. Pelham and Samuel E. H. Pelham, minors, defendants, asking for the cancellation of deeds calling for certain parcels of land with the numbers one and one hundred eight, respectively, situated in the City of Greenville, Sinoe County, in which petition she claims that said parcels of land had fraudulently been transferred to the said minor children of the said T. E. Cess-Pelham by the said T. E. Cess-Pelham himself, and probated and registered without her knowledge and consent.

On inspection of the records sent up to this Court for review, we have not been able to discover that the copy of any evidence of title was filed with the complaint, the basis of the claim of petitioner, which, in the opinion of this Court, is absolutely requisite in the establishment of claims to real property; nor do we find contained in said bill in equity the required clause that should have been inserted in said petition giving notice to respondent to produce said deeds in the event they were in his possession.

“It is a rule of modern practice that when a pleading is founded on a written instrument a copy thereof may be annexed, and made a part of the pleading by reference as an exhibit, and by statute, or rule of court, it is sometimes made obligatory on the pleader in such a case to annex a copy of the instrument to the pleading.” 21 R.C.L. 476, § 39; Shipman, Common Law Pleading 481, §§ 287-88.

This principle is also in accord with our statutes which provide as follow:

“If a party desire to give in evidence any document in possession of his adversary, he shall give him reasonable notice to produce it, and the Court shall have authority to decide whether the notice is reasonable. .. . If the party to whom the notice has been given to produce a deed or other instrument neglect or refuse to do so and do not prove that it is not in his power, he shall be taken to admit its authority and its contents may be proved by a copy, or by the testimony of witnesses.” 2 Rev. Stat. 236, § 1381.

The records further show that at the call of the case for trial the attorneys for defendants sent a note, informing his Honor the Judge that they were ill, and asking that the case be postponed. Although the judge received the letter and had a record made thereof, yet he rendered a judgment by default against the defendants, and thereafter he proceeded to render final judgment without even hearing any evidence in support of the allegations contained in the bill in equity of the plaintiff. With respect to this the Court fails to see how a judgment by default could have been rendered, inasmuch as defendants had appeared and filed an answer setting up their defense, without passing upon the demurrers and pleas therein raised. Nor, in equity jurisprudence, is it usual to render judgments by default, especially where the party apparently in default has appeared and filed his pleadings.

Moreover the judge further erred in proceeding to render final judgment without any evidence having been adduced on either side. This Court will further observe that allegations are intended only to set forth in a clear and logical manner the points constituting the cause of action for which relief is prayed, and if not supported by evidence can in no case amount to proof. It is a fundamental rule of law that evidence must support the allegations or averments in both law and equity proceedings. Evidence alone enables a court to pronounce with certainty concerning the matter in dispute. Cf. . Houston Bros. & Co. v. Fischer & Lemcke, I L.L.R. 434 ( i9o4).

There having been no evidence, oral or written, adduced in support of the claim set up in the bill in equity, this Court fails to see under what principle of law the court below was enabled to hand down a decree in this case.

This Court therefore is of opinion that the case should be remanded with instructions to permit the plaintiff to withdraw her complaint and file a new one according to law and the indications herein given; that the deeds illegally ordered by the judge taken from the plaintiff and delivered to the sheriff, should be placed in possession of the clerk of the court with instructions that either party may have copies therefrom and use the originals in evidence should the necessity arise; and that no costs be allowed either party up to this stage of the case; and it is so ordered.

Reversed.

[1] Nete-Sie Brownell for appellant, and C. L. Simpson for appellee, each appeared in this matter before the 23rd January, 1934 when the latter was elevated to the position of Secretary of State, and the former promoted to that of Solicitor General. After their respective appointments, the latter was not allowed again to appear in a court as counsel, nor the former as counsel except for the Republic of Liberia.—Howard, Clerk.