Day v. Welles

31 Conn. 344

• Court: Supreme Court of Connecticut
• Decided: February 15, 1863
• Status: Published

Opinion

Butler, J.

The only question raised on this motion in error is, whether the facts alleged in the bill and admitted by the demurrer entitled the petitioner to the relief sought.

The material allegations relied upon show that the petitioner was garnisheed by the respondent as the supposed debtor of the Tunxis Company, and cited to appear and disclose ; that the petitioner employed counsel to defend against the claim, and appeared and disclosed, and was found not indebted by the court; that he was subsequently served with a copy of a scire facias, and, ignorant of the forms of proceeding in such cases, supposed and believed that it was the practice and duty of counsel, when so employed, to defend through the entire proceeding instituted to compel him to pay the debt of the Tunxis Company, and that therefore his counsel would enter a defense in the scire facias, as a matter of course, without new employment, whereas a different practice had grown up, of which he had no knowledge; and further averring that he had a good and perfect defense, and intended to defend, and must lose the whole amount of the judgment if relief is not granted him by the court.

These facts are conceded by the demurrer, and it must be assumed that the petitioner did not owe the Tunxis Company, and but for the mistake could and would have defended successfully ; that the judgment is therefore unjust, and if collected will be greatly oppressive, and that it is against equity and good conscience for the respondent to retain it; and the only question remaining is, whether, under the rules governing the discretion of a court of equity in such cases, it was competent for the court below to grant the relief.

It certainly does seem strange at first sight, that in a court of equity, upon an application within its jurisdiction, addressed to its discretion, and asking a new trial, the respondent may admit that the action could have been successfully defended and was groundless, and the judgment therefore unjust and oppressive, and that it is against conscience for him to retain and enforce it, and yet insist successfully that the petitioner can have no relief, if chargeable with any inattention or neglect.

But the rule is clear, that equity will not interfere to grant a new trial in an action at law, however unjust the judgment or great the hardship, unless the judgment was obtained through fraud, accident or mistake, unconnected with any negligence or inattention on the part of the judgment debtor, and the rule is founded on the necessity of the case ; for if it was otherwise, petitions to set aside or enjoin judgments at law would become too common, and a court of equity be compelled generally to revise decisions at law which on legal principles should be final.

The petitioner alleges that he mistook in relation to the practice of counsel at the bar of Hai’tford county in respect to proceedings in foreign attachment, in supposing that his employment of counsel to defend against the claim made upon him would extend through the entire proceedings, whereas by the practice of counsel in relation to their employment, of which he was ignorant, the scire facias is treated as a new case, requiring a new employment, and therefore his counsel did not defend. Was that a negligent mistake ?

The proceeding in favor of a creditor to attach and appropriate the debt of a third person due the debtor, is given by statute. It is one entire provision and proceeding for a single purpose, consisting of several steps where necessary, of which the scire facias is one. The respondent is not entirely right therefore in claiming that by presumption of law the petitioner “ knew that in every particular it was a new action for a new cause and between different parties.” It is a new process, and a new step or stage in the proceeding, to effect the same purpose that is provided for by the citation and disclosure, but the cause and pwrpose are the same, and on the trial the issue is the same.

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Nor is the respondent entirely right in claiming that the counsel who acted on the trial of the citation and disclosure is properly at liberty, in the absence of further express employment, to act for tlie opposite party on the scire facias. It is in the nature of a new trial under a new process. The issue being the same, and the case substantially the same, there would be an impropriety in the taking of a retainer on the opposite side and carrying to the opposite party all the information obtained in confidential relation with his original client and on a previous trial. Nor are we aware that such a practice has ever existed. On the contrary, although it may be and doubtless is proper that counsel should charge a retaining fee in the scire facias, we do not think it has been regarded generally by the profession in the state as so distinct and independent as to require a new express employment; and so far as we know, prior to the adoption of the recent rule dispensing with the calling of the dockets at the commencement of the term, it was the practice of counsel employed generally by garnishees, and deemed their duty, to enter their names in actions of scire facias brought against their clients on the calling of the docket, without a new employment and as a matter of course. The practice was a natural, and we believe, general one, and within the scope of the employment, as generally understood by counsel and clients.

Such being the nature of the proceeding, and the former and probably in some counties the still prevalent practice, we can not find that Mr. Day was guilty of negligence or of culpable inattention, in acting on the supposition that his employment of counsel was understood to extend to the entire proceeding in all its stages, and that the scire facias would be defended by them without a new express employment by him.

Without intending therefore to evade or relax the salutary rule, to which courts of equity must necessarily and strictly adhere, and which has been so clearly set forth by the counsel of the respondent, we yet feel constrained to hold that the petitioner was under a mistake in relation to the extent and effect of his employment of counsel, and of their practice in respect to such employment, which did not involve such personal negligence on his part, or .such negligence on the part of his counsel as such, as should preclude him from the relief sought, and that there is no error in the record.

In this opinion the other judges concurred.

In support of this view see Sherwood v. Stevenson, 25 Conn., 431. R.