Bledsoe v. Wright

61 Tenn. 471

• Court: Tennessee Supreme Court
• Decided: December 15, 1873
• Status: Published

Opinion

Turney, J.,

delivered the opinion of the Court.

“In all cases of attachment sued out because the defendant resides out of the State, or has merely removed himself, or property from the State, the judgment or decree by default may be set aside upon application of the defendant, and good- cause shown, within twelve months thereafter, and defence permitted upon such terms as the Court or Justice may impose.” Code, Section 3529.

“All Courts shall be open, and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Section 17 of Article I, Declaration of Eights.

In contemplation of the organic law the Courts are always open.

The Statute quoted, construed by the light of the constitutional ordinance, gives to the party claiming and asking the benefits, the full term of twelve months, within which to make the application and show cause. The cause is to be shown in the application, the address of the application to the proper tribunal, and the filing of it in the right office, is a compliance with the law. The question whether sufficient cause has been shown is one to be determined in Term time, when the motion to set aside the judgment or decree by default is made, that motion being based upon the application, and cause shown thereby within the twelve months. The question to determine is, is the application made, and good cause shown within twelve months, and not that the judgment should be set aside within twelve months. It is not the action of the Court, but that of the party complaining, that is limited to twelve months. The party having done all required of him, delays and continuances by Courts, their incompetency, as in this case, or their failure to meet, can not divest him of the right invested by his application, showing good cause.

Beverse the judgment.