Chase v. Swain

Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring. This was an action against the defendants, as administrators of John Marsh, deceased. Personal service was duly made on both defendants; and, no answer having been filed within the time prescribed by law, a judgment by default was taken.

Defendants moved to set aside the judgment, on the ground that the default was taken by the mistake, inadvertence, or excusable neglect of defendants; and also on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The affidavits in support of the motion not only fail to show any reason for setting aside the judgment on the first ground, hut disclose the most gross and culpable neglect on the part of defendants. They were personally served, and took no steps in the matter, even by consulting an attorney, until the time for answering liad expired; the only excuse offered for this neglect is ignorance of the law requiring an answer to be filed within ten days.

The objection to the sufficiency of the complaint is not tenable. The complaint shows that Marsh, in his lifetime, was indebted to one Sibrian, who assigned a portion of his claim to plaintiff, as collateral security; that afterwards he made a parol assignment of the whole claim to plaintiff, for a valuable consideration; that, after such assignment, Sibrian brought suit on the demand against Marsh; that it appeared in evidence on the trial that the present plaintiff was the real owner of the claim, and that a general verdict was rendered in that suit for the defendant.

It is now claimed by appellants, that the verdict in that suit is a bar to this action. We are not able to see bow the action of Sibrian, after he had parted with his interest in the claim, could prejudice the rights of his assignee, who does not appear to have had any notice of the proceeding. In order to constitute a bar to the action, it should appear that the former suit was not only about the same cause of action, but between the same parties. As the present plaintiff was a stranger to the former suit, his rights are not affected by its result.

We think that the allegation that the claim was presented to the administrators, accompanied, “ as vouchers for the truth thereof,” by the affidavit both of plaintiff and his assignor, and was formally rejected, sufficient to enable the party to maintain the action without stating the contents of the affidavits.

The objection to the form of the judgment is not well taken; it is entered in the usual forms of judgments by default; and, though upon its face a general money-judgment, yet the one hundred and fortieth section of the Probate Act declares that the effect of such a judgment shall be only to establish the valid