Kite v. Lumpkin

McCay, J. 1. The judgment of Kite vs. Ayer was obtained since the Relief Act of 1868 was passed. If Ayer had any defense to the plaintiff’s claim it was his duty to have pleaded it, and he would have been heard. We decided in the case of White vs. Herndon, at this term, (ante) that the Relief Act only applies to judgments in cases where the defense could not have been set up as a defense at the time of the judgment. This, the defendant might have done, and he gives no reason at all why he did no,t do it. When the judgment was obtained the Relief Act. was of force. His defense under it was just as good then as it is now. It would be monstrous to permit a defendant to neglect to put in his defense until the sheriff came to collect the money. He had his day in Court, and even if his defense is an honest and just one, he has lost it, by failing to present it in time. It will be noticed'that, as to the plea under the Relief Act, no reason at all is assigned why it was not filed before the judgment. The defendant seems to have thought that the public would wait his convenience, would furnish Courts and juries and a day for him to be heard, but that if he saw fit to wait, it would give him another opportunity. In this he was mistaken. Independently of the right of the plaintiff, the public is not thus to be trifled with. 2, As to the ground taken in the affidavit that the defendant had a good defense to-the plaintiff’s claim under the Scaling Ordinance, but failed to bring it to the notice 6f the Court, by reason of a misunderstanding between himself and his lawyers, we think that is no excuse. ■ It would be indeed an extraordinary practice, to permit a solemn judgment of a Court to be set aside, and a new trial to be had, on such a ground as this. The well settled rule is, that the judgment concludes [509] all disputes between the parties, unless there be fraud, accident, or mistake, uhmixed with any negligence of the party complaining. The misunderstanding between him and his lawyers, resulting in their failure to file a plea, was gross negligence. If he did employ them, they were grossly negligent,- and if he did not, the negligence is his. If a man manage his affairs so badly, that he leaves it in doubt whether he has employed an attorney to defend his suit, he must take the consequences. ' • '' Neither of these defenses are good after judgment, and any sheriff ought to be familiar enough with the ordinary course of law to know it. If the sheriff may with impunity take an affidavit of illegality and stop his execution, on a claim-that under the settled rules of law is concluded by the judgment,. it will be very difficult ever to get money -on an execution. Section 3621 of the Code expressly provides, that if a defendant has had his day in - Court, he‘cannot go behind the judgment, by an affidavit of illegality. This the sheriff was bound to know; there was no pretence that the- defendant had not been served. We are of opinion that the sheriff erred, and has made himself liable, as for contempt. He has failed to obey the process of the Court, and he gives no sufficient reason for so doing. Judgment reversed.