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where the default has arisen from an evident mistake, or from decidedly excusable neglect. Although such judgment may not eventually stand, the entry may be made the means of enforcing proper and advantageous terms, in relation to the defence or otherwise ; and although the courts never regard, with any favor, the snapping up of default as against an adversary, really and bona fide intending to defend ; still, on the other hand, an excess of indulgence to the adverse party may become blameable, and occasionally even dangerous. The possible death of a defendant, and the consequent delay of the recovery of an amount due, and the fact that, under such circumstances, the holder of thạt debt can only come in for a share of the testator's estate, if deficient; whereas, if judgment had been signed in the latter's lifetime, such judgment would have been entitled to priority; may be adduced as one of the numerous instances, in which an undue delay in this respect, might be most detri mental. A just medium, between a mere snatching at petty advantages on the one hand, or too great supineness on the other, should be observed, or endeavoured to be observed in all instances.
In some cases, however, the courts have refused to open a default when taken ; as, for instance, where a palpably frivolous defence has been put in. See cases to that effect cited under the head of pleading. Where, also, an unconscientious or dishonest defence is sought to be set up, after default, a court will not open that default under such circumstances, or relieve the party from the consequences of his own neglect in that respect.-James G. King v. The Merchant's Exchange Company, and others, 2 Sandf, S. C. R. 693.
The power of the court will, of course, be exercised with far less latitude and far greater caution on an application for relief on the above grounds or any of them, in respect of a judgment taken on an actually contested hearing. To warrant such an application, a very strong case indeed must be shown, evincing unavoidable surprise or decided bad faith on the adverse part, and good reasons also must be given why application has not been made earlier. “ Vigilantibus, non dormientibus leges subveniunt," is a maxim, which, in cases like these, may still be applied.
In Church v. Rhodes, 6 How. 281, relief of a peculiar and special nature was administered. The defendant had there moved for a rehearing of a referee's report, on which judg. ment had been entered, as provided for by sec. 272 of the Code of 1849. Pending that proceeding, the amendments of 1851 were passed, which took away his remedy in this respect, and, in the meantime, the period for appealing had run out. The court, under these circumstances, allowed a motion to be made to take the judgment off the roll pro formâ, in order to its immediate re-entry, with a view to restore the defendant's right to review, by appeal, under this unusual state of things.
The course of proceeding on an application of either of the foregoing descriptions, is the same as that before laid down, as respects one on the ground of irregularity. The circumstances under which the court is requested to interfere, on any of the grounds mentioned in sec. 174 as before cited, must be clearly made to appear, and the case clearly brought within one of them. Copies of these affidavits should, as in other cases, be served with the usual notice of motion, which may be in the form given in the Appendix; or an order to show cause, with an interim stay, may be obtained instead, where that proceeding is the more advisable. A special order to stay proceedings until after the motion is heard and decided, may also be obtained and served, if, after notice has been given in the ordinary form, further measures on the part of the plaintiff are apprehended.
In the event of the application being granted, the order should be entered in the usual manner with the clerk of the court, and will form his authority for taking the judgment off the record. Should that judgment have been docketed elsewhere, a certified copy of the order should be obtained, and lodged with the clerk of that county, which will constitute his authority to a similar effect. Should execution have been issued, the service of a similar copy upon the sheriff will arrest his proceedings.
In Montgomery v. Ellis, 6 How. 326, a question was raised as to whether a party who had obtained judgment in his favor, was competent to apply for a modification of that judgment, under the section last cited ; and it was held that, though not within the words of that section, the case was obviously within its meaning and spirit, and that the court accordingly possessed power to grant the application, if otherwise proper to be granted.
Another proceeding, analagous to the foregoing, is that specially prescribed by sec. 135, in cases where judgment has been taken, grounded on service by publication. It is there provided that, “except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may, in like manner, upon good cause shown, be allowed to defend, after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just ;” and, if he succeed in such defence, restitution, where applicable, may be enforced.
The application for this purpose must be grounded, as in other cases, on the usual notice of motion, supported by affidavits. As yet, no reported decision appears as to the form of these proceedings; but the proof adduced must clearly embrace the following requisites:
1. Good cause why the applicant should be let in to defend must be shown on the affidavit made for this purpose, and therefore, in addition to any special matter inserted with that view, which should be as strongly put as practicable, the usual statement on an affidavit of merits, must, in all cases, be included. The affidavit so prepared should be sworn to by the actual applicant whenever practicable, or, if not, then by his attorney or agent, stating fully the reasons why it cannot be made by the former.
2. It must be shown, on the affidavit in question, that actual notice of such judgment has not been received by such applicant until less than one year prior to making the application.
3. It must also be shown, that not more than seven years have elapsed since the rendition of such judgment.
The practice, on an application of this nature, does not, as yet, appear to have been made the subject of settlement. It is evident, however, that, on the hearing, it is competent to the plaintiff to oppose, and to bring forward affidavits on his part to rebut the case made out by the defendant, either as regards the showing of good cause to defend, or otherwise. The power of the court to impose “such terms as may be just,” is, as will be seen, express; and the allowing the judgment to stand as security to abide the event of the proceedings, is a condition that may reasonably be asked for. If the claim to defend be allowed, the course that may probably be prescribed will be the putting in of an answer, and the bringing on of the cause to trial in regular course, on the issue to be joined thereon, as if such answer had been put in to the complaint, within the time originally allowed for that purpose.
The above observations close those in relation to the setting aside of judgment by interlocutory proceedings. Before passing on, however, to the subject of execution, it may be convenient to notice, at this juncture, the mode by which a judgment, when paid off, is satisfied on record. This proceeding remains precisely as it was under the old practice. The usual form of a satisfaction piece for this purpose will be found in the Appendix, and, when signed, it must, as heretofore, be acknowl.edged in the usual manner before a Commissioner of Deeds or other officer duly authorized. Such satisfaction may be signed and acknowledged by the party himself, or his executors or administrators, at any time. Within two years after the filing of the record, the attorney in the action is also competent to do so ; but, after that time, his authority in this respect is at an end; or, if that authority be revoked in the meantime, a satisfaction afterwards signed by a party in this position, will not be conclusive as against his client, or in respect of any person to whom actual notice of such revocation has been given, before any payment by him upon, or purchase of property under such judgment.--V. 2 R. S. 362, 363.
The satisfaction, when duly signed and acknowledged, must be lodged with the clerk of the court in which the judgment was rendered and the judgment roll filed : whereon, and, on the payment of his fee of 12} c., the entry of satisfaction is made in his book, and the discharge of the judgment is complete as far as regards that particular court, or, in respect to judgments in the supreme court, as regards that particular county.
If docketed in others, a certified transcript or transcripts of the entry must be obtained, and one of those copies must be filed, in each county in which the judgment has been so docketed. The same proceeding will be necessary on the entry of satisfaction on judgments of the superior court of New York, or on those of any other court of limited or local jurisdiction elsewhere, whereon the docketing of a transcript in the county clerk's office has been originally necessary, with a view to their becoming liens on real estate within his district.
Of course, the above observations have no relation to releases of any particular property from the lien of a docketed judgment, by deed, or other instrument; a notice of which would be out of place, being, as they are, strictly conveyancing proceedings, and in no way connected with the practice of the courts.
If, after payment of a judgment, the party subsequently refuse to sign the necessary papers for entering satisfaction, so as to discharge all liens thereunder, he may be compelled to do so by an application to the court, on affidavit of the facts. The affidavit must, however, show an offer to pay all reasonable expenses, at the time that such papers are tendered for his sig. nature, to which he is of course entitled. It is, however, highly inexpedient to delay the entry of satisfaction, on the payment of a judgment of whatever nature. By far the wiser practice is to do so at once, and that, in every county in which the judgment has been docketed. An usual course in these cases, is for the satisfaction piece to be prepared on the part of the defendant, and the signature of the plaintiff's attorney obtained, and his acknowledgment taken, at the time of settlement, which saves any further trouble, and also any expense, except the usual commissioner's fees on that acknowledgment.
In the last place, it has been held in Wells v. Danforth, 1 C. R. (N. S.) 415, that the payment of a judgment does not prevent the defendant from prosecuting an appeal therefrom, unless such payment has been made by way of compromise, and agreement to settle the controversy.
Before passing on to the subject of execution, the present seems the most convenient juncture to notice the proceedings in relation to, and consequent on the entry of judgment against joint debtors, not served with the process by which an action was originally commenced, which will accordingly be done in the succeeding supplementary chapter.