Rogers v. Sandford Kingsbury

By the Court.- Benning, J. delivering the opinion. The writ of error would have furnished a corrective for the errors complained of in the bill. But the benefit of the writ of error was lost to the complainant by his own negligence. If he had applied to this Court for a mandamus against the Clerk, at the term to which his writ of error was returnable, he would have saved the return of his case. But he never applied for a mandamus at any term, and he gives no excuse for never having applied for one. We must impute it to his ■negligence therefore, that he did not get a mandamus, and consequently, we must impute it to his negligence, that he missed having his case heard in this Court. Now a Court of Equity will not relieve a party from a judgment which he might have prevented, but for his own negligence. [62] Perhaps the complainant is still entitled to a motion to set aside the judgment that dismissed the appeal. I incline myself strongly to think that he is. But he has no remedy in Equity. The judgment ought to be affirmed. Judgment affirmed.