Alverson v. Alverson

Per curiam. In applications like this, if it is shown that the petitioner has through accident lost his day in *29 Court, and that he has a defence in which there is matter for trial, it lies in the sound discretion of the Court to grant or refuse the motion. It is not necessary to show that the defence is valid, and the Court, will not go into the evidence except so far as to satisfy themselves that the petitioner has prima facie good grounds for a trial. In this case the petitioner has sworn to statements, which, if true, constitute a defence, and we have hot, therefore, in coming to our conclusion considered the contrary testimony offered upon this point. It appears that the attorney was seasonably instructed to answer the case, the petitioner did not, however, then state that there was a defence, but wished it continued that it might be settled. The plea was not filed, and judgment was rendered by default at the last March term. In April the execution was taken out, and the officer charged with it called several times upon the petitioner, and stated the amount of the execution and in none of these interviews did the petitioner intimate that the judgment was Unjust or the account over ¡charged or that he had a claim in offset, but said he intended to settle it. The Court met on the fourth Monday of September, and down to the 7th of November, the day before the sale, the petitioner had made no motion for a new trial. These are circumstances which make against his application, and however reluctant we are to cut him off from his defence, yet the judgment of the Court should not be set aside except for strong reasons, and we think where a petitioner deals in this way with an execution, he- loses his claim to have the Court interpose in his favor. Motion denied.