Wixom v. Davis

1 Walk. Ch. 15

• Court: Michigan Court of Chancery
• Decided: June 15, 1842
• Status: Published

Opinion

The Chancellor.

From the complainant’s bill, it appears that he and Cook, the maker of the note on which the judgment was obtained, reside in the same town; and it is no where stated that the complainant, when he was sued, applied to Cook to know whether there was a defence to the action. The inference is that he did not; for, if he had, as Cook knew all the facts, it is to be presumed he would, in season to have made his defence at law, have been put in possession of the information of which he complains he was ignorant when the judgment was obtained. He had endorsed the note for the accommodation of Cook; and he should have inquired of him when he was sued upon it, if there was any defence. In this respect he failed to use that diligence he should have used, and the injustice of which he complains is the result of his own negligence, and not of any defect in the law. This Court cannot give relief in such a case. “ I do not know” (says Chancellor Kent, in Penny v. Martin, 4 J. C. R. 566,) of any principle that will authorize this Court to take jurisdiction of a case where the remedy was, in the first instance, full and adequate at law, because the party may have lost that remedy by ignorance, founded on negligence, not on accident, or mistake, or on any misrepresentation or fraud.”

(1) The complainant not only neglected to inquire of his prinqipal whether there was a defence to the action, but waived, as the bill states, “ any defence he might have had on account of the note not having been protested for non-payment;” and then, eighteen months afterwards, and after an execution had been taken out and levied on his property, and the same had been advertised for sale, files his bill for relief, without stating any excuse whatever, for not having made his defence at law, otherwise than his ignorance of the facts until a short time previous to filing the bill of complaint.

The ignorance of a party of his defence at law is not a sufficient reason to warrant the Court in interfering with a judgment, where such ignorance is connected with negligence, and might have been removed by the use of ordinary means to obtain the necessary information. Penny v. Martin, 4 J. C. R. 566 ; Foster v. Wood, 6 J. C. R. 87; Duncan v. Lyon, 3 J. C. R. 351; Auriol v. Smith, 1 Turn. Sr Russ. 121 ; (S. C. 11 Eng. Cond. Ch. R. 69.) This is the rule in equity where a party asks for leave to file a bill of review; Livingston v. Hubbs, 3 J. C. R. 124; Bingham v. Dawson, Jac. R. 243; (S. C. 4 Eng. Cond. Ch. R. 114;) and at law, where he applies for a new trial on the ground of newly discovered evidence. The People v. Superior Court of New York, 5 Wend. R. 121. The injunction must be dissolved.

Injunction dissolved.

See also Barrows v. Doty, 1 Harr. Oh. R. 2; Wright v. King, Id. 12, and note ai the end of the case.