Leighton v. Wood

17 Abb. Pr. 177 | N.Y. Sup. Ct. | 1863

Leonard, J.

In this action, and three others, against the same defendant, in favor of different plaintiffs, verdicts were obtained at the circuit, by default, against the defendant for $4,000 damages in each case. The counsel for the defendant had been in court and moved to postpone the trial, on the ground that he was unable to procure the attendance of witnesses, many of them being absent from the State, they being very numerous; and the trial being brought on unexpectedly, the defendant was unprepared, &c. The court, at circuit, had denied the application to postpone, and after the defendant-had left the court, inquests were taken in each case.

Motions were subsequently made to set aside these inquests, at a special term, where, upon a full examination, the motions were granted.

The applications were made upon the ground of irregularity; and also, in case the motions should not prevail upon those grounds, for favor upon the facts disclosed.

The motions are now brought up on appeal from the orders setting aside the inquests, and letting the defendant in to defend the actions, and restoring them to the calendar for trial.

The plaintiffs insist that they have obtained an absolute right, by the verdicts so obtained, with which it is not in the power of this court to interfere, except upon the ground of irregularity.

I do not so understand the practice. The practice has been long well settled that it was in the discretion of the court to set aside .inquests and open defaults, for the purpose of attaining justice by a fair trial, when it appeared that the defaulting party had a good and substantial defence upon the merits, or that such defence probably existed, to the whole or some part of the action.

Such relief is often granted, even against the open and confessed negligence of the defaulting party, or of his attorney or counsel.

The plaintiff can claim no actual right to hold an'unjust verdict, whether the whole amount of the verdict is involved or only some part of it.

It would be a mockery of justice to hold a verdict, obtained without a hearing of the case for the defence, where the court could not be fully satisfied that the defendant had no evidence that would materially reduce the verdict or wholly defeat the action. The relief asked for in such cases is usually granted upon terms of compelling the defaulting party to repair the damages which his default has occasioned to the other side,, by paying the costs of the term which has been lost, of the inquest, and of opposing the motion to open the default. And where the defendant is in such pecuniary circumstances as to endanger the recovery, the additional condition is imposed, of permitting the verdict to stand and execution to issue as security. Ho substantial right of the plaintiff is interfered with. His cause of action remains. He can still pursue his remedy, bring his cause to trial, and obtain his verdict, if his proof will warrant a recovery; and if it will not,- certainly it would be a reproach to the administration of justice to permit a recovery by default, even after negligence on the part of the defendant in preparing his cause for trial.

The discretion of the court in denying such an application, and the severity of the terms liable to be imposed, is a sufficient protection against the unnecessary or repeated occurrence of defaults.

Orders of this description are discretionary, and are not subject to review upon appeal.' But were we to look into the merits of the application, considering the nature of the action, the amount of the recovery, the number of witnesses required, and the shortness of the time left to procure them after the learned judge who presided at the circuit had decided that he would not postpone the trial, it would be impossible to arrive at any different conclusion from that of the judge who vacated the inquests, or to doubt the soundness of the legal discretion which directed the orders now appealed from.

It does not appear from the face of these orders whether the motions were granted upon the ground of favor, or of irregularity in the proceedings.

We are bound to presume that the orders were granted for favor, inasmuch as we can find no irregularity; and the orders ought to have been granted for the former reason.

It is not claimed that the defendant is not well able to respond for any recovery which the plaintiffs may obtain.

The'order should have been granted on the condition of the defendant paying the costs of the term of the inquest, and of opposing the motion. That part of the order directing the plaintiff to pay the costs of the motion should be submitted to the judge who heard the motion for resettlement, and the terms above indicated should be imposed upon the defendant.

It is but just to mention, that the learned judge who heard the motions at special term, states that the order was settled in this form, as to costs, through inadvertence—the motion having been in fact decided differently in respect to the costs.

The orders appealed from are in all other respects affirmed, without costs.

Sutherland, P. J., concurred.

Barnard, J., expressed no opinion.