Mix v. White

1 E.D. Smith 614

Opinion

By the Court. Daly, J.

Whether we have the power to relieve under the § 366, after the defendant has appeared and answered, where the judgment has been taken by default, through a misapprehension on the part of the defendant, as to the time of adjournment, it is not necessary to decide; but it must appear that manifest injustice has been done. The defendant must satisfy the court by affidavit, that he had a valid defence, in whole or in part, to the action. He merely sets up by the affidavit of his attorney, that he put in an answer. This is not sufficient. He must swear upon this application that the defence so set up was true in fact. He has not done so, but on the contrary, the respondent swears that the defence set up was without foundation. Upon the proof, therefore, before us, we are bound to conclude that the judgment was right.

Judgment affirmed.