Abbe v. Marr

Baldwin, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

Defendant, Williams, appeals from a judgment which was taken against him by default after publication. Waiving the very serious point made by the Appellant, that the judgment by default was irregular, for non-complianco ivith the statutory provisions, we are met by an insuperable objection to the judgment upon the face of the complaint. Judgment is taken upon all the matters in the complaint, of which, if we understand the pleading aright, is the charge against one of the defendants, of prevailing upon the plaintiff to enter into a conspiracy to cheat the other defendants in a horse-race, byway of “ getting even ”—as it is expressed—on a loss the plaintiff had sustained on a former race, in which last he bad been swindled, and not only to “ got even,” but to remunerate and console himself for his first misfortune, by obtaining some fourteen hundred dollars more than he had lost by like practices. Eo Court of Justice can listen to such a case. When the plaintiff asserts his own turpitude in this way, he sends his case out of Court. If, in attempting, by way of reprisal or otherwise, to swindle another, he becomes the victim of his own arts, it may become a question in morals or in honor, which party is the more culpable; Courts of Law entertain no discussion on the subject, but terminate the controversy by shutting their doors in the face of the intruder.

A judgment by default can no more be taken, under our Practice Act, when the complaint shows no legal cause of action, [212]than it can be taken over a general demurrer; and, on more general principles, in the absence of objections, Courts of Justice, not from what they conceive to be due to the parties to the controversy, but from what they consider due to the law, refuse to take cognizance of such cases.

Judgment reversed, and the cause remanded.