Arrington v. Sherry, Janes & McCrea
Before: Murray
Synopsis
An application by a defendant to set aside his confession of judgment, should show that the claim was not just, and that the judgment ought not to have been confessed.
But can the defendant be allowed to come in by affidavit, and thus impeach his former acts? Quere ?
A junior judgment creditor has no right to join with the defendant in an application to set aside such confessed judgment. He must resort to a Court of Chancery if he is dissatisfied.
Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred.
The appellants have mistaken their remedy. The application of Sherry to set aside his confession of judgment, does not address itself to the conscience or consideration of the Court. For aught that appears from his affidavit, the claim was just, and the judgment ought to have been confessed. Besides, it is no wise clear that he could be allowed thus to come in and impeach his former acts. So far as Provost, who claims to be a junior judgment creditor, is concerned, he has no rights whatever in this proceeding, and must resort to a Court of Chancery if he is dissatisfied with the judgment.
The order of the Court below is affirmed.
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