Gwin v. Harris

1 S. & M. 528

• Court: Mississippi Chancery Courts
• Decided: December 15, 1842
• Status: Published

Opinion

Chancellor.

This case was submitted upon an application to set aside a pro confesso taken at the last January term of this Court, and for leave to file an answer, which is now offered. The defendant is a non-resident, and the pro confesso was based upon the execution of an order of publication. The defendant shows, that he was advised of the existence of the bill enjoining his judgment at law, by his counsel, who stated to him that it was unnecessary to answer the bill, as the injunction would be dissolved for want of equity. That as soon as he learned that a pro confesso had been taken, he repaired to this State, for the purpose of defending the suit. The question is, whether, under these circumstances, the defendant is entitled to the favor he asks. It is a sound and salutary rule of practice, to hold parties to a suit to reasonable diligence in their preparation for trial, and to make them suffer the consequences of their neglect. But rules of this kind are intended for the furtherance of justice, and must not be so applied as to defeat the end of their institution. They must have a just and reasonable application, guided by a sound discretion, exercised upon the features of each particular case.

In the case of Beckman v. Peck, 3 John. Ch. Rep. 415, Chancellor Kent, on affidavits, set aside a decree which had been taken by default, and enrolled for several months, perpetuating an injunction, and allowed an answer to be filed. It is clear, in this case, that a final decree cannot be rendered for the complainant, without further evidence. The complainant does not positively deny notice to him as indorser, and his whole ground for relief jests upon the question, whether he was charged with notice or not. To let the defendant in to a defence, cannot, therefore, materially delay the progress of the case. These applications are addressed to the sound discretion of the Court; and where it is apparent that no injurious delay can result to the opposite, party, the purposes of justice seem to demand, that the party in default should be admitted to a hearing, before his rights, are finally adjudged, unless he has precluded himself by a .culpable neglect of his interests. I do not think that the defendant, in this case, is chargeable with such neglect. He appears to have been misled by the erroneous advice of his former counsel. Let the pro confessó be set aside, and the answer filed, upon payment of all'costs up to this time.