19 Or. 508 | Or. | 1890
delivered the opinion of the court.
The mistake or excusable neglect alleged was an omission on the part of counsel for the defendant to ask the lower court to pass upon an exception in a certain one of the deeds offered by them and received in evidence to establish the title of the defendant.
It is claimed by reason of this omission on their part that the defendant was deprived by the judgment in ejectment of his one-fourth interest in the lots, which otherwise would have been- excluded from such judgment. The excuse for this omission is that the record of title involved in the action of ejectment was voluminous and complicated, and the exception in the deed referred to overlooked by them, and hence included in the judgment for the whole title rendered in that action. Under the Code, the court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment or order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Hill’s Code,
It is true that some few cases may be found which seem to inpinge the principle of the absolute verity of judgments and open them for purposes of doubtful legal propriety. In Levy v. Joyse, 1 Bos. 624, a judgment was opened so as to permit a defendant to make certain proof which by mistake he had neglected to offer, a conclusion that the court could not forbear saying, had not been reached “without some hesitation.” But the case at bar goes further, and invokes a relaxation of the principle which demands the exercise of reasonable diligence and vigilance in the conduct of an action or defense.
It asks us to say that the neglect of a defendant or his attorneys under the circumstances indicated, to inform himself of the recitals in a deed by which he asserts or claims title, and which he offers in evidence, is such
The judgment must be affirmed.