Reagan v. FitzGerald

Searls, C. J. —This is an appeal from a final judgment rendered in favor of defendant on sustaining a demurrer to plaintiff’s complaint, and refusal by the latter to amend, and from an order dissolving an injunction.

The action was brought to annul a judgment rendered in favor of the plaintiff by default in a justice’s court, and for an injunction restraining the collection or assignment thereof.

It appears from the complaint that the defendant, as executrix of the last will of Patrick Fitzgerald, deceased, brought suit against the plaintiff herein in a justice’s court to recover two hundred and eighty dollars, as for money loaned to the latter by defendant’s testator.

Summons was regularly served upon plaintiff, but the latter, being unable to read, made a mistake as to the return day, which was February 9, 1885, and did not appear in the cause until the following day, when he caused a demurrer to be filed to the complaint. This demurrer was on the 18th of February stricken out, on motion of plaintiff’s counsel therein, and judgment entered against the defendant.

On the twenty-first day of February, 1885, defendant in that case moved the court to vacate the judgment and permit him to file an answer, basing his motion on the ground of mistake, inadvertence, and excusable neglect, and averring that he had a good and meritorious defense to the action on the merits. What particular facts were set out in the justice’s court to show a meritorious defense to the action, beyond a statement of non-indebtedness, does not appear.

The motion to set aside the default was denied March 5, 1885, and thereupon this action was instituted.

Section 859 of the Code of Civil Procedure gives to justices’ courts power, “on such terms as maybe just, and [232]on payment of costs, [to] relieve a party from a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect, but the application for such relief must be made within ten days after the entry of the judgment, and upon an affidavit showing good cause therefor.”

The application to set aside the default was in due time.

Injunctions to restrain proceedings at law are granted in instances where the facts show it to be against conscience to enforce such proceedings, and at the same time show that the injured party could not have availed himself of such facts in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence on his part.