Gibbons v. Scott

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

This is a suit in equity, to set aside a judgment of the District Court of the Tenth Judicial District. The judgment was rendered in September, 1853, and the record shows that there was a personal service of the summons, and a copy of the complaint. The plaintiff alleges that no such service was in fact ever made, and that he had no notice of the proceedings until long after the rendition of the judgment. He further alleges that the officer who certified to the service, and the sureties upon his official bond, are insolvent. So far, the case falls exactly within the rule laid down in Gregory v. Ford, decided at the October T. 1859; but the plaintiff goes further, and alleges that he had a valid defense to the action, of which he claims that in equity and justice he should still be permitted to avail himself. But the allegations in relation to this defense are insufficient. The defense is founded upon an executory agreement, by the terms of which certain things were to be done by the plaintiff, and in consideration thereof, he was to be relieved from the debt for which the action was brought. It is not alleged that any of these things were performed by him, or that he ever offered, or was, or has been, at any time, ready or willing to perform the same.

We have no right to reverse the judgment for the purpose of affording the plaintiff an opportunity to amend his complaint. He did not offer to amend in the Court below, and there is nothing in the record to justify a reversal.

Judgment affirmed.