Deal v. . Palmer

Settle, J. We are of opinion that his Honor had the power to relieve the defendant from the judgment taken against him at Spring Term, 1872, and that in so doing he exercised a sound discretion. The Code of Civil Procedure, sections 132 and 133, clothes the Superior Court Judges, as we think, wisely, with large discretion as to amendments in furtherance of justice, and relief in cases of mistake. But the plaintiff complains further, that after the adjournment of Court at Fall Term, 1872, without notice, his Honor made an order, at Chambers,- granting permission to the de *217 fendant to answer without giving the security provided for by an act ratified the 28th day of March, 1870, requiring a defendant in an action for the recovery of real estate to file a bond for costs. The Code of Civil Procedure, sec. 72, points out the mode in which a person may obtain permission to sue as a pauper. And we find a proviso to the act of 1870, above referred to, which enacts, “that no defendant shall be required to give said bond if any attorney practicing in the Court where the action is pending will certify to the Court in writing that he has examined the case of the defendant, and that in his opinion the plaintiff is not entitled to recover, and said defendant shall further file an affidavit that he is unable to give said bond.” These requisites have been complied with. But the plaintiff’s counsel objected that his Honor granted this permission without notice to the plaintiff. Neither the Code of Civil Procedure, sec. 72, nor the proviso to the act of 1870, requires notice to be given to the adverse party. The certificate of counsel, together with the affidavit of a party, it would seem, are sufficient, without notice, to authorize a Judge to grant the permission under either act. There is no error. Pee Cueiam. Judgment affirmed.