72 Vt. 344 | Vt. | 1900
In June, 1894, the defendants brought suit against A. A. Niebaum returnable before the City Court of the City of Burlington, June 19, 1894. In this suit the orator was. duly summoned as trustee of Niebaum. At the time the suit was brought Niebaum was not a resident of this State and personal service was not made on him. On the return day of the writ, and from time to time thereafter, the suit was continued by the City Court, for notice to Niebaum, until September 12, 1894, when judgment by default was rendered by that court against him for the sum of $419.82 including costs of suit; and at the same time judgment was rendered by default against the orator as trustee for Niebaum for $419.82. The orator’s bill alleges that at the time of the rendition of such judgment, he was prevented from appearing in court by reason of then being detained in the City of Montreal, Canada, by sickness; that at that time, and at the date of the service of the writ on him, he did not have in his hands any goods, chattels, rights, or credits of the said Niebaum, nor did he have at any time, for which he should have been adjudged liable as trustee; that the orator returned from Montreal about September 13, 1894, to Burlington and made known to the defendants his claim that he was not liable as trustee of Niebaum and applied to them and their attorney to have the judgment against him as trustee stricken off, that-
The orator among other things prays that the defendants may be perpetually en joined from enforcing said judgment and to have the same decreed to be null and void. He also prays for general relief. The defendants demurred to the bill for want of equity, insisting that the orator has a complete defence at law if he has any defence, and consequently that equity has no jurisdiction. It is not necessary to discuss what right to relief, if any, the orator would have had, if Niebaum had entered and prosecuted his writ of review to final judgment. Assuming that he could have had no benefit therefrom, not being a party of record thereto, it would make no difference in this proceeding. The orator as the law then stood was entitled to bring his petition to said City Court within two years from the rendition of the judgment against him, to have the same set aside on the ground that he was deprived of his day in court by accident, for clearly being
The relief is allowed in such case upon the ground that when by mistake or fraud one has gained an unfair advantage in proceedings at law, which will operate to make the court of law an instrument of injustice, equity will interfere to prevent him from reaping the benefit of the advantage thus unfairly obtained. 1 High on Inj. (2nd. ed.) sec. 199. In such cases equity has original and concurrent jurisdiction.
The application of this rule is the same whether the fraudulent conduct and deceitful representations of the plaintiff were used by him to obtain such a judgment at law, or to retain it while the defendant yet had his day by the law to be heard on the question of setting it aside. In either case, such defendant is lulled into seeming security by the fraud and thus deprived of his day in court as to the merits of the cause. Under this rule, the orator is clearly entitled to relief in equity.
Decree reversed and cause remanded, with mandate that the demurrer be overruled and the bill adjudged sufficient.