5 R.I. 348 | R.I. | 1858
It is not necessary for us to consider whether the judgment and execution, against which in this case our aid, as a court of equity, is invoked, are void or voidable, either because the judgment was obtained without personal notice, or because no copy of the writ and return was left at the usual place of abode of the defendant in the writ, when he had no such place within the precinct of the officer charged with the service of the writ. It is sufficient to say, that if this be as the complainant contends, there was no necessity upon him to apply to us on this side of the court; since, as a court of law, *352 we have full power, upon motion, to stay or revoke an execution unadvisedly issued by us.
There is indeed one aspect of this case, in which, admitting the validity of the judgment, the case might have been one for equitable relief. It was undoubtedly the duty of the respondent, when ordering, in his own suit, an attachment of the complainant's property placed in his possession for sale, to have given notice to his principal of the attachment; and he was reminded of this duty by the copy of the writ and return, left with him by the officer for the very purpose of being sent to his principal. His right to pursue his principal, as a debtor, did not absolve him from the duties of the agency, which, he admits, he had assumed upon himself. A judgment by default, obtained under the circumstances that this was, would, within the year allowed by statute, have been readily set aside by us, upon motion, provided the applicant for a trial had satisfied us that he had a defence to the suit. If the principal, thus wronged, had no notice or knowledge of the judgment obtained against him until after the expiry of the year within which he might have applied for relief on the law side of the court, he would certainly, on the ground of breach of trust and for the prevention of fraud, be entitled to it in equity, upon the same condition. The difficulty in this case is, that the hearing being upon bill and answer, the answer completely negatives all the allegations of the bill as to the defences of the complainant to the promissory note upon which judgment was obtained against him by default, and leaves the complainant before us in the position of an applicant for a trial or new trial, who has no merits in his case to exhibit, on the trial which he prays may be granted to him. Neither courts of law or of equity, when exercising, as in such cases, a discretion, exercise it except to some good and useful end; and especially will not a court of equity interfere with proceedings at law, merely for the sake of interfering.
This bill must be dismissed with costs. *353