Davison v. Heffron

31 Vt. 687 | Vt. | 1859

Bennett, J.

This is a petition to have a judgment of a justice of the peace overruled and a new trial granted, on the ground that the defendant did not have his day in court. The petition rests upon the statute which authorizes the court to set aside a judgment of a justice where the defendant has been prevented from appearing by reason of fraud, accident, or mistake. In Babcock v. Brown, 25 Vt. 550, it was held that where it appeared that the attorney forgot the day of the court, his negligence or forgetfulness must he regarded as the negligence or forgetfulness of the party, and that that was not a case within the statute, and we think that case should govern this. The gentleman whom Mr. Kirkland employed in behalf of his client to attend the justice court on the day of the adjournment, or procure counsel to attend, neglected to attend to the business, simply because the matter passed out' of his mind until after the day of the court. Though Mr. Kirkland may not have been guilty of negligence personally, yet the person whom he engaged to attend to the business was, and his negligence must in the eye of the law be regarded as the negligence of the party, and the principle of the case in 25 Vt. is, that the statute should not be extended to a case where the accident or mistake was the result of a want of reasonable care, resting in forgetfulness. It is not the business of the courts to open anew a scene of litigation to relieve a party against his own gross negligence. To hold that mere forgetfulness of the day of the court was a good ground to set aside a judgment under the fraud, accident or mistake law, would be fraught with evil consequences, and we think does not come within the spirit of the law. Though setting a judgment aside may be a matter resting in the discretion of the court, where the facts bring the case within the statute, and the exercise of that discretion could not be reversed by this court, yet, it is a question of law whether a case comes within the statute, and in such a case the judgment of the county court njay be reversed,

Judgment affirmed.