| N.H. | Aug 13, 1875
Lead Opinion
FROM GRAFTON CIRCUIT COURT. The question of discretion transferred for our consideration in this case is, whether, upon the facts stated, the motion of the plaintiff to have the action brought forward and judgment entered in the circuit court at the March term, 1875, for the purpose of saving his attachment, ought to have been granted; and I must say, it seems extremely clear to me it ought not. The action was entered at the March term, 1874, and continued. Whether it was answered to does not appear; but at the September term it was entered on the clerk's docket "default, judgment." This entry, under our practice, shows a special order of the court for judgment as of that term. If there had been no entry of judgment, but simply a default, the plaintiff might at any time afterwards have entered up a judgment, but still it must have been as of that term. There is no claim that the entry is wrong, and no motion to vacate the judgment then ordered.
But aside from this, it seems to me the facts stated do not show sufficient ground upon which the motion should be allowed. The only facts laid before us having any bearing upon the matter are, the taking of an order on Hildreth by plaintiff's counsel, his omission to present it for acceptance till after the expiration of the thirty days under the belief that it would be accepted, and Hildreth's refusal, after the lapse of thirty days, to accept or pay it, claiming that he had no funds of the defendant which he was willing to appropriate for that purpose. *169
I do not think it can be fairly claimed that here was anything done by the defendant to prevent the plaintiff from taking out and levying his execution in the usual way. There is nothing to show that any fraud was practised to induce the plaintiff to neglect taking out an execution. Indeed, it does not appear but that Hildreth all the time had in his hands funds of the defendant, or that the defendant did not believe he would accept and pay the order. The case falls entirely short of Hackett v. Pickering,
Concurrence Opinion
Merely bringing an action forward and entering it upon the docket, is I suppose, a matter of course whenever it is desired to make any motion in regard to it, and the convenience of the parties would be promoted by doing so. But bringing all action forward does not vacate a judgment. The entry upon the docket of "default, judgment," is evidence that judgment has been ordered. From what we know of the manner in which the records have been kept, I am afraid there are many cases where the only semblance of a record is the docket entry, and it has never been the practice to withhold execution until the full record has been made up.
Here, then, is a judgment on which execution might have been issued, and thirty days having elapsed, the lien of the attachment is gone.
The proposition is now to vacate that judgment for the purpose of saving, i. e., restoring, the attachment. If I understand the evidence, there was ample time to have presented the order, and if payment were refused, to have taken execution and placed it in the hands of the officer. The attachment appears to have been lost by the negligence of the attorney. I do not understand from the case that the defendant had any reason to suppose that his order would not be accepted, or any evidence of any fraud or deception on his part. It appears to me, then, that the case does not come within any of the circumstances which justify vacating the judgment. It is not a case of fraud, accident, or mistake, and I think the exception should be sustained.
Concurrence Opinion
The defendant was defaulted at the September term, 1874, and judgment was rendered against him in favor of the plaintiff. This the docket shows; and it makes no difference that the judgment was not formerly entered up on the records. The plaintiff could have taken out his execution without any further order or decree of the court, and by his neglect to do so, and levy the same, his attachment was dissolved in thirty days from the end of the term. It cannot be revived, at least against the rights of third parties, and in the absence of any fraud. The case falls short of Hackett v. Pickering,
Exceptions sustained. *170