Robbins v. Mount

3 Ga. 74 | Ga. | 1847

By the Court.

Warner, J.

delivering the opinion.

This was a bill filed by the defendants in error, to be relieved against a judgment at law obtained against them by one of the plaintiffs in error, Nathaniel C. Robbins.

There was a demurrer to the bill, in the Court below, for want of equity, which demurrer was overruled by the Court; whereupon the plaintiffs in error excepted, and now assign the same for error here.

Have the complainants by their bill made such a case as will entitle them to be relieved against the judgment at law, according to the rule established by this court, Bostwick vs. Perkins, et al.; 1 Kelly R. 130; and in Stroup vs. Sullivan & Black; 2 Kelly R. 279? We think not. In both these cases we distinctly recognised the doctrine, that when a judgment has been rendered against a party by a court of competent jurisdiction, it fixes his liability to pay it, unless he can show that he had a good defence at law, of which he was entirely ignorant while the suit at law was pending against him, or unless he was prevented from availing himself of his defence, by fraud, or accident, or the act of the adverse party, unmixed with negligence or fault on his part; that he is bound to full diligence; that his neglect in one court will not be allowed to give him a right in that court, or another; that whenever a suit is instituted against a party, it is his duty promptly to defend it, if he has any defence to make, at the proper time, and in the proper manner; and, if he fails to do so, and judgment is rendered against him in consequence of his negligence, a court of equity has no power to relieve him.

What is the defence of the defendants to the judgment at law I They desire to plead as a set-off to the plaintiff’s demand, the bills of the Southern Life Insurance and Trust Company. What is the ground of their application to a court of equity to enable them to make this defence, as stated in their bill of complaint ] Why that they confessed judgment on the first trial for the full amount of the plaintiff’s demands, reserving the right of appeal; that after the confession of judgment, Sutlive, one of the defendants, was deputed by the others, within the four days allowed for entering the appeal, to enter the same in the clerk’s office. When Sutlive called on the clerk to enter the appeal, the clerk supposed it was an injunction bond which he wished executed, and not being well versed in the forms and requisites of such bond, requested the said Sutlive to return home and get one of the attorneys to draw the bond and send it down, afterwards stating, that would be all sufficient; and the said Sutlive being ignorant of the necessity of entering an appeal in the case, though sent for that purpose, returned home without entering the same, which was unknown to the other defendants until the time for entering the appeal had expired. The allegation amounts to this, stript of all the drapery thrown around i't by the draughtsman of the bill, that the other defendants intrusted Sutlive, their co-defendant, to enter the appeal, and he being ignorant of the necessity of entering an appeal in the case, though sent for that purpose, failed, and neglected to do so. Whose fault was it that the appeal was not entered? Can it be said that the failure to enter an appeal was unmixed with negligence or fault on the part of the defendants to the judgment at law ? We apprehend not, and therefore the judgment of the Court below must be reversed.

Judgment reversed.