Robuck & Orr v. Harkins

Warner, J. This was a bill filed for a new trial, and to restrain, by injunction, the judgment of a court of law upon the several grounds set forth in the record. Bills of this description are not, as a general rule, much' favored in a court of equity. 2d Story's Equity, 174, sec. 888. In Stroup vs. Sullivan & Black, 2 Kelly’s R., 275, this Court stated the rule to be, that a court of equity will not grant relief against a judgment at law, on the ground of its being unconscientious, “ unless the 'defendant in the judgment was entirely ignorant of his- defence pending the suit, or unless, without any default or neglect on his part, he was prevented by fraud, or accident, or the act of the opposite party, from availing himself of his defence, or by some unavoidable necessity." The defendant, in the Court below, demurred to the bill, wh'ich demurrer was overruled, and that is the assignment of error here. In our judgment, the complainants' bill does not make such a case as entitles them to the relief which they 179 seek. There is no reason given why the complainants did not except to the rulings of the Court on the trial of the claim case, within thirty days after the .adjournment of the Court, so as to have had the errors complained of, corrected by this Court, or why they remained inactive until after the land was sold by the sheriff, before filing this ■ bill for a new trial. Besides, if the claimant had exercised proper diligence after the trial of the claim case, he could have obtained all the relief in the common law court which he now seeks here, under the provisions of the 3668th and 3670th sections of the Eevised Code. Let the judgment of the Court below be reversed.