3 Cal. 130 | Cal. | 1853
Concurrence Opinion
concurred, and delivered the following opinion.
• The record and the statement agreed upon between the parties, amply disclose a state of facts that would entitle the defendants to relief from- the judgment obtained against them in the court below; and the only questions remaining for us to consider are, first: Whether the District Court has the power to grant
The power of the court, under the 68th Section of the Practice Act, to relieve the defendants from the judgment, in case the same were taken against them through their inadvertence, surprise, or excusable neglect, is expressly admitted by the District Attorney, in the grounds of appeal set forth by him in the record, but the Attorney-General controverts this doctrine by his associate, and insists that it has been repeatedly intimated, and in one case decided in this court, by an opinion delivered by Judge Murray, that after the term at which a judgment is rendered against a defendant regularly summoned, the District Court has no power to set aside a judgment of a previous term. We have no recollection of such a decision, and as the Attorney-General does not cite the case relied upon by him, no opportunity is afforded us of examining it; but if he cites correctly, the decision has been overruled in Kewen v. Biddleman, May Term, 1852, wherein Judge Murray concurred, and in which the very opposite doctrine was held; indeed, the language of the act is too explicit to admit of such a restrictive conclusion as the Attorney-General would have placed upon it. By the last Practice Act, now repealed, Section 68, the court had power to set aside a judgment upon the same grounds, at any time within one year after notice thereof; by the present act, the like power is given, and the court is not limited in the exercise of it to any particular period. So far, then, from abridging, the legislature intended by the present act to enlarge the powers of the court in this respect, and to relieve a party from an unjust or improperly obtained judgment, at any time, upon good cause being shown. The power thus extended to the court is a safe and salutary one, and, indeed, is absolutely necessary for the due administration of justice. In the interior, or remote districts, the terms are of brief duration, lasting sometimes only a single day, or a week at most, and the districts embrace a wide extent of territory ; if the doctrine contended for by the Attorney-General were to obtain, a defendant would be remediless where an oppressive and unjust judgment had been obtained by default against him, and that,
The next objection to the order of the court appealed from, is based upon the nature of the proceedings on which it was granted. It is said that the application “ is a regular bill in equity, to set aside a judgment on the ground of fraud.” We do not so regard it. It does not purport to be a complaint in a new action, nor are the titles of the parties, plaintiff and defendant, reversed or enlarged, but are the same as in the original suit: no summons was issued in the manner required by law for the commencement of civil actions: no answer was required, and none was filed, nor was relief sought upon the ground of fraud alone, but upon all the material allegations set forth in the application; the relief asked for was such as the court had the power to grant under the 68th section; and upon the application, a rule was issued to the District Attorney—the attorney of record in the case—requiring him to show cause why it should not be granted, In this we cannot discover anything necessarily constituting an original bill in a suit in equity. The statute does not require that the application shall be made in any particular form, or by any special proceeding, either by petition or otherwise: it empowers the court to grant the relief upon an affidavit showing good cause therefor, and it is not material in what particular form the application was made, nor was it necessary that the precise words “ mistake, surprise, inadvertence, and excusable neglect,” should be employed in the application, but only that the facts should be set forth, and if they showed a case coming within the rule, it was a sufficient showing.
It having among other allegations been charged that the judgment had been obtained through fraud, the Attorney-General insists that the order setting aside the judgment was irregular : that the court had no authority to grant such order without trying the issue, and finding the frauds; and that there must be an issue made and a trial had establishing the frauds. His position might be maintained in an action brought to set aside a judgment on the ground of fraud, but it can have no standing in the present case, to which it in no manner applies. The same may be said of the rule in Russel v. Amador, cited by him.
The charge of fraud may have been, not improperly, added to the grounds upon which the defendants sought for relief: they do not rely upon the allegation of fraud alone, and the mere charge, even if unsustained, did not destroy the merits of -the application, and if established, might tend to show that through its means the defendants were induced to fall into mistake, were taken by surprise, or were misled into excusable neglect.
Whether good cause was shown for the opening of the judgment and permitting the defendants to come in and answer, was a question properly addressed to the discretion of the court below, and we cannot discover that such discretion was in the slightest degree abused; on the contrary, from a full examination of the case, we are satisfied that it was properly exercised. The order of the court is therefore affirmed, with costs to the respondents.
Lead Opinion
delivered the opinion of the court.
This was a bill in equity, to set aside a judgment which was improperly obtained; the reasons assigned are, that there was no cause of action and no notice to the parties. This remedy is well recognized in all courts having chancery jurisdiction, and the case made out by the complainants is one which fully entitles them to the interposition of the court.
The Chancellor having heard the evidence, and decided that the parties were entitled to the relief sought, we see nothing, either in the pleadings or statement of the case, which will authorize this court to disturb the decree.
Affirmed, with costs.