Chase v. Swain

         The default was properlyand regularly taken before the clerk of the District Court. (Pr. Act, Sec. 150.)

         In support of the motion to vacate the judgment in the Court below, the defendant Swain states, in his affidavits: " That the default of the defendants has been taken against them by the inadvertence of this deponent."

         In support, the deponent wishes to bring the case within the scope of the 68th section of the Practice Act, by using the word " inadvertence."

         Instead of a statement of facts, in which the Court may determine the questions of inadvertence, as a conclusion of law, he adopts the word as his own.

         Then what is the sense of the word as it is used in Swain's affidavit? Certainly, nothing more than its ordinary sense--inattention or neglect.

         So, in the affidavit of the defendant, James Marsh, the deponent states a conclusion of law when he states in his affidavit, " that the judgment entered in this action was taken against the defendant greatly to the surprise of deponent, and entirely through the excusable neglect of defendants."

         The defendants were in no way taken by surprise, for the summons was personally served upon both of them; and the summons gave them noticeto answer in ten days or judgment would be taken for the amount claimed.

         Swain states in his affidavit " that deponent was not aware that it was necessary to make the answer to said complaint or appear thereto, before the first day of the present March Term of this Court."

         This only shows ignorance of the law, and is no ground for relief under the 68th section of the Practice Act.

         In the case of Wallace & Ryland v. Mary Bennett, decided at the January Term of this Court, 1855, the defendants, in the affidavits in support of the motion to abate the judgment, stated " that the summons was served while she was lying ill; that as soon as she could she consulted a lawyer, who advised her that it was not necessary to file an answer; as she was a married woman, she could not be sued without her husband; that she was unable to read, and that she has a good defense, as the plaintiffs did not perform the service for her they agreed to do when she signed the note."

         But the Court says: " There is no error or record which the Court can notice. The judgment was properly taken before the Clerk, and we cannot consider the affidavits on which the subsequent motion was made to vacatethe judgment. If the defense has any rights, she must assert them in some other way."

         In the case at bar, the affidavits in support of the motion to vacate the judgment, do not state the facts as favorably in support of the motion, as were stated in the affidavit of Mary Bennett, in the case above cited. The case does not come within the scope of the 68th section of the Practice Act. Such was the opinion of the District Court.

         But this appeal was taken from the judgment of the Court below as well as from the order of refusal to vacate the judgment.

         Appellants object to the sufficiency of the complaint to support the judgment. One point relied on is a former verdict upon the same subject-matter, in a suit by one Ygnacio Sibrian against John Marsh. The counsel upon this point seems to assume that the former suit was between the same parties.

         The authorities he cites on this point are cases in which the former suit was always between the same parties and upon the same subject-matter.

         A judgment in a suit for the recovery of money, is no bar to a subsequent suit, unless it be upon the same points, and between the same parties. (Philip, Adm'r, v. Thompson, 3Stew. & Potter, 369.)

         The proposition that Ygnacio Sibrian having no interest in the claim which is the subject-matter of this action, could assume to have an interest and bring suit against John Marsh, and get defeated, and thus bar the right of the real owner to recover his claim, is absurd, and requires no controversy.

         The claim was assigned to Chase, by parol, if not in writing, before Sibrian brought suit against John Marsh. Sibrian had no right of action. A debt or claim may be assigned by parol as well as by writing. Any transaction which indicates the intention of the contracting parties to pass the beneficial interest in the claim is sufficient for that purpose. (2 Story's Eq. 311; Heath v. Hale, 4 Taunt. 326.)

         The appellants' counsel also takes the ground that the plaintiff's claim when presented by him to the administrators, was not accompanied by the proper affidavit, as required by statute. (Comp. Laws, p. 395, Sec. 131.)

         In answer to this it may be affirmed that nothing appears in this complaint to show that plaintiff's claim was not accompanied by the proper affidavit.

         And it appears that the claim was formally and, in writing, rejected byboth administrators before suit was brought against them by plaintiff to recover the claim.

         By section one hundred and thirty-two of the statute, when a claim accompanied by the affidavit required in the preceding section, is presented to the administrator, he shall endorse thereon his allowance or rejection.

         It is presumed that the administrator acted according to law, and that the proper affidavit accompanied the claim when presented, from the fact that they acted upon it. (1 Green. on Ev., Sec. 40.)

         " The neglect of the party to appear and answer to process, legally commenced, in a Court of competent jurisdiction, he having been duly served therewith and summoned, is taken conclusively against him, as a confession of the matter charged." (1 Green. on Ev., Sec. 18.)

         JUDGES: Terry, C. J., delivered the opinion of the Court. Burnett, J., concurring.

         OPINION

          TERRY, Judge

         This was an action against the defendants, as administrator of John Marsh, deceased. Personal service was duly made on both defendants; and, no answer having been filed within the time prescribed by law, a judgment by default was taken.

         Defendants moved to set aside the judgment, on the ground that the default was taken by the mistake, inadvertence, or excusable neglect of defendants; and also on the ground that the complaint did not state facts sufficient to constitute a cause of action.

         The affidavits in support of the motion not only fail to show any reason for setting aside the judgment on the first ground, but disclose the most gross and culpable neglect on the part of defendants. They were personally served, and took no steps in the matter, even by consulting an attorney, until the time for answering had expired; the only excuse offered for this neglect is ignorance of the law requiring an answer to be filed within ten days.

         The objection to the sufficiency of the complaint is not tenable. The complaint shows that Marsh, in his lifetime, was indebted to one Sibrian, who assigned a portion of his claim to plaintiff, as collateral security; that afterwards he made a parol assignment of the whole claim to plaintiff, for a valuable consideration; that, after such assignment, Sibrian brought suit on the demand against Marsh; that it appeared in evidence on the trial that the present plaintiff was the real owner of the claim, and that a general verdict was rendered in that suit for the defendant.

         It is now claimed by appellants, that the verdict in that suit is a bar to this action. We are not able to see how the action of Sibrian, after he had parted with his interest in the claim, could prejudice the rights of his assignee, who does not appear to have had any notice of the proceeding. In order to constitute a bar to the action, it should appear that the former suit was not only about the same cause of action, but between the same parties. As the present plaintiff was a stranger to the former suit, his rights are not affected by its result.

         We think that the allegation that the claim was presented to the administrators, accompanied, " as vouchers for the truth thereof," by the affidavit both of plaintiff and his assignor, and was formally rejected, sufficient to enable the party to maintain the action without stating the contents of the affidavits.

         The objection to the form of the judgment is not well taken; it is entered in the usual forms of judgments by default; and, though upon its face a general money-judgment, yet the one hundred and fortieth section of the Probate Act declares that the effect of such a judgment shall be only to establish the validity of the claim. We see no reason why a judgment by default may not be taken against an administrator as well as any other party. The law requires that he should be served with process, but provides no means of compelling him to answer. The default must be taken as an admission of all the material allegations of the complaint, which are, we think, sufficient to entitle plaintiff to recover.

         The allegations as to the merits of the defense, contained in the affidavits of defendants, were entitled to no consideration at the hands of the Court. If defendants had shown any reasonable or valid excuse for their failure to answer, then it would have been proper for the Court below to consider the nature of the facts relied on as a defense, in order to determine whether the ends of justice would be promoted by opening the judgment.

         None of the causes for setting aside a judgment by default, mentioned in the statute, are shown to exist in this case, and the Court below properly refused the application.

         Judgment affirmed.