Gardner v. Wight

3 E.D. Smith 334

Opinion

By the Court. Ingraham, First J.

The papers in this case show that judgment was obtained by default; that the neglect to appear was owing to a mistake of the defendant as to the return day, made in consequence of pressing engagements, and that the defendant told his attorney to appear on a subsequent day.

Upon the merits, it appears by the defendant’s affidavit that the horse, for keeping which this action is brought, belonged to Ann Ketchum, and not to the defendant. On the part of the defendant, it also appears that the horse was improperly used, and when returned, had been seriously injured.

The plaintiff shows, by a witness present at the agreement, that the name of Ketchum was not mentioned, but that the defendant engaged to pay for the keeping of the horse at the rate proved on the trial; and by another witness that the horse was not misused, and was in better condition when returned than when brought to him.

We have heretofore held that a mere forgetting of the day of the return is not a sufficient excuse to warrant setting aside a judgment by default (Beebe v. Roberts, July G. T. 1854);

Footnotes

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(a) and that the engagements of party or counsel elsewhere would not be a sufficient excuse (Mulhern v. Hyde, May G. T. 1854); (b) but that when the party had mistaken the day of return, either through wrong information or from other causes, it might be sufficient, if the court was satisfied of the error, and the defendant attended on another day in consequence of such mistake. (Gottsberger v. Harned, April G. T. 1853, 2 E. D. Smith, 128.)

If it he conceded that under the last cited decision, the error of the defendant might be considered sufficient, still the defendant has not brought his case within the provisions of the 366th section of the Code. In the case last referred to, we also decided that where the defendant rested merely on his own affidavit to show that injustice had been done him, and the allegations on which he rested were denied by the plaintiff and witnesses, his affidavit was not sufficient. Upon the trial the testimony of the witnesses could only be received, and in this case the plaintiff’s witness swears that he was the only person who was present when the bargain was made. The defendant is contradicted as to his whole defence by the plaintiff and by the plaintiff’s witnesses. If- the defendant had any witnesses to prove his case, he should have produced their affidavits on this appeal. If there are none, it would be idle to. open the case merely on his affidavit, when there are witnesses on the other side who entirely disprove the defence. • The weight of testimony here is wholly against the defendant. We cannot, therefore, say that any injustice has been done by the judgment. Especially, where the amount in controversy is small, the judgment below, if regularly obtained, should not be opened to admit a doubtful defence, much less where the whole defence is disproved by witnesses.

Judgment affirmed.

а) Ante, p. 194.

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Ante, p. 177. And see Fowler v. Colyer, 2 E. D. Smith, 125.