White v. Leeds

The opinion of the court was delivered, by Read, J. The judgment by default for want of an affidavit of defence, was entered in this case in pursuance of the Act of the 11th February 1847, known as the Mercer County Act (Purd. p. 804), which was extended to the county of Indiana by the Act of the 15th April 1858 (Pamph. L. 266). There were fifty-seven days from the service of the writ to the entry of the judgment, and the state of facts from the record presents a regular judgment obtained in accordance with the Acts of Assembly, and it was not asked to be set aside for any irregularity. This was a final judgment: Sellers v. Burk, 11 Wright 344; and a motion to open it, or to take it off, was addressed to the sound discretion of the court below, and is not the subject of a writ of error. In Kalbach v. Fisher, 1 Rawle 323, Judge Rogers says: “ There are many cases in which writs of error do not lie from the decisions of the Courts of Common Pleas, such as granting or refusing a new trial, opening or refusing to open a judgment, and motions of various lands in which parol evidence is heard without placing it on the record;” and such is the uniform course of our decisions: Kellogg v. Kramer, 14 S. & R. 144; Skidmore v. Bradford, 4 Barr 296 ; Nice v. Bowman, 6 Watts 26; McKees v. Sanford, 1 Casey 105; Bounce et al. v. Wightman, 5 Id. 335. And in Withers v. Haines, 2 Barr 435, both points raised here were decided. The affidavits and the opinion of the court are therefore not before us, not forming any part of the record. The court below are the proper judges of the opening of a judgment for want of an affidavit of defence, and they clearly have the power to do it, where it would, in their opinion, further the cause of justice. Judgment affirmed.