24 N.J.L. 219 | N.J. | 1853
Galbraith obtained a judgment against Cooper, in the vacation preceding June term, 1852, pursuant to the act entitled, “ An act to facilitate the administration of justice,” approved March 15,1851. At the succeeding November term, a rule was obtained by the defendant, calling on the plaintiff to show cause why the judgment should not be set aside, and he be permitted to plead, and authorizing him to take depositions to be read on the hearing. At the February term last,
It appears that the affidavit of the defendant, upon the reading of which the rule to show cause was allowed, was not put on file, and cannot now be found. A new ex parte affidavit of the defendant, and an affidavit of the counsel, made pending the argument., are now offered to show the loss of the original affidavit, and to prove its contents. I am clearly of opinion that no sufficient ground for receiving these affidavits has been shown. It is the duty of a party obtaining a rule of this court upon facts disclosed by affidavit to put the affidavit on file. If this is neglected, unless it be made to appear that the neglect was occasioned by some casualty which no ordinary precaution could guard against, the court must proceed as if no affidavit had been made; and if the rule is of such a nature as required special facts to be shown, will discharge it, as improvidently granted. To permit the contents of such an affidavit to be supplied by a new one, without some strong necessity, would be to open the door to evils too obvious to require comment.
The newly made affidavit of the defendant is also offered to be read to explain the laches, by not pleading in time and by not applying to the court at the first opportunity ; and also to prove facts tending to show that he has a good defence to make against the action of the plaintiffs. I think it altogether incompetent for either of these purposes. The ex parte affidavit of the party is received to show such a prima facie case as will induce the court to allow a rule to show cause; and such an affidavit regularly on file may, perhaps, be read at the hearing, simply to show the defendant’s belief that he had merits. In a plain case of surprise, the court, in its discretion, may open a judgment and let in a party to defend upon his own affidavit taken without notice, as was done in the case of Crane ads. Condit, 1 Harr. 349. But, to justify such a course, the facts must be so indisputable and the case so clear of doubt as to justify considering the motion, under the cir
So far, then, as the facts judicially appear, the defendant has suffered a term to elapse after a regular judgment was obtained against him, upon which an execution was issued and levied, without any application to the court for relief and without any excuse for the delay. Such a delay unaccounted for is itself a sufficient reason why the court should decline to interfere. But it appears, by the statements of the counsel on both sides, that before any application was made to the court, or any notice was given to the sheriff or to tho plaintiff or his attorney of any intention to apply, the money mentioned in the execution was paid by the defendant to the sheriff, and by him paid over to the plaintiff. Surely it ought to be a special case, indeed, that will justify the court in setting aside a judgment by default under such circumstances. No case has been produced, nor am I aware of any in which the court has interfered, unless the process was unexecuted or the money
Taking this view of the subject, it is unnecessary to go into a particular examination of the evidence presented to us to show that the defendant has in fact a real defence to make on the merits; at the most, it only shows that it is somewhat doubtful whether the claim against him is a valid one. I am of opinion that, as the case stands, the defendant has not shown himself entitled to relief, and that the rule to show cause must be discharged, with costs.