Nihan v. Knight

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. *Page 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, 5 N.H. 19, and to grant the motion would, as it seems to me, be adopting a practice quite too loose, and one calculated to produce far more mischief than it would remedy.