Popino v. McAllister

19 F. Cas. 1046, 4 Wash. C. C. 393

• Court: U.S. Circuit Court for the District of New Jersey
• Decided: October 15, 1823
• Status: Published

Opinion

WASHINGTON, Circuit Justice

(PENNINGTON, District Judge, absent, from sickness). Unless this rule can be supported upoir those general principles of law which regulate the practice of courts in cases like the present, it must be discharged; since it is quite clear to my mind, that it is neither within the words or intention of the eighteenth section of the judiciary law, and that the court has no good ground for considering it to be within the equity of that section. But I am of opinion that .according to the English practice, as well as the practice of this state, a judgment by default against the casual ejector, for want of the defendant appearing and confessing lease, entry, and ouster, may be set aside at a subsequent term, upon good cause shown, where the defendant swears to merits, and a trial has not been lost. This is also the practice of the New York courts. It is admitted by the plaintiff’s counsel, that in case of a judgment by default, obtained by fraud, or for the want of notice of trial, the court may set aside the judgment on terms, where merits are sworn to. But surely these cannot be the only cases in which the court will relieve the defendant. If his default be caused by too short a notice, or by an act of God, (both of which occur in this case) justice equally requires the interposition of the court; who will not permit the possession to be changed, when it was beyond the power of the defendant to be prepared to defend it, particularly too in a case where the plaintiff has suffered, and can suffer no injury. In this case, the application of the defendant to set aside the judgment was promptly made, although by mistake addressed to the judge out of court. The plaintiff has not lost a trial, since the defendant would undoubtedly have been indulged by the court with a postponement of the trial, could his situation have been made known. The plaintiff can suffer no injury by the defendant being let in to defend his possession, whereas by refusing to set aside the judgment, the latter will be turned out of possession, and may be placed, as to his ultimate success, in a less favourable situation in the character of a plaintiff, than in that of a defendant. The court will certainly not relieve the defendant against a judgment by default, rendered at a preceding term, unless his application is promptly made, merits sworn to, and good cause shown to excuse his non-compliance with the consent rule, to confess lease, entry, and ouster, all which must be satisfactorily proved. Now, in this case, the application for the rule, to set aside the judgment, was made at the next term succeeding that at which the judgment was entered; the plaintiff, as before stated, has not in reality lost a trial, and the defendant swears that he is advised that he has a legal defence; and further, that he and those under whom he claims, have had an uninterrupted possession of the premises in controversy for sixty years. He was not bound to set out, in his affidavit, the whole of his title. But it is insisted that the facts upon which the defendant relies for relief ought to have been stated in an affidavit, and that they should have been proved by some other person than the defendant. The court cannot agree with the counsel in either of these particulars. The facts being stated in the form of a petition, and the truth of them being verified by the oath of the party, they are as satisfactorily proved as if they had been stated in the formal shape of an affidavit. It is possible that the same facts might have been proved by some third person; but, resting in the knowledge of the party himself, it is nearly impossible that they could have been as satisfactorily proved by any other than the defendant. Others might have proved that he was sick, and his attorney might have stated when and how he forwarded to him the notice of trial. But who could so well satisfy the court as to his ability to prepare for the trial, and the time when the notice was received, as the man who asserts his inability, and the time 'when he did receive the notice. I am of opinion that the .-judgment by default ought to be set aside upon the payment of costs.