Full text
McClelland versus Pomeroy
The opinion of the court was delivered, March 16th 1874, by
Agnew, C. J.
It needs no authority to prove that the opening of a judgment is a matter of discretion, and generally cannot be reviewed on a writ of error, unless where the opening of a judgment, in the particular case, is an excess of power: Catlin v. Robinson, 2 Watts 373. The refusal to open a judgment is simply to do nothing, to stand still, and is not a transgression of power : Henry v. Brothers, 12 Wright 70. Cases such as Knox v. Flack, 10 Harris 337, stand on a different footing, to wit, the want of power to enter the judgment, which become a subject of error, if not relieved by the court below. In that case infancy rendered the confession of judgment voidable, the warrant of attorney being void. It was a case of want of jurisdiction over the person of the party, and consequently could be corrected upon a writ of error. The court of error has power in such a case to determine the fact, or have it determined, to prevent injustice. This doctrine is even more strongly asserted in Banning v. Taylor, 12 Harris 289. But in this case before us there was no want of power to enter the judgment, and no want of jurisdiction over the person of the defendant. The usury complained of did not appear on the face of the judgment, or of the instrument upon which it was entered. It is true it entered into the transaction, and might therefore be ascertained, and would then constitute a ground upon which the court might open the judgment and let the defendant into a -defence as to the usurious portion of the sum contained in the paper and judgment upon it. But it did not vitiate the judgment so as to make it ipso facto a subject of a writ of error. On this principle a writ of error would reach every judgment containing some portion which a defendant might on a trial defend against. The refusal of the court to open this judgment was therefore no ground of error. We must presume that the court acted properly and upon sufficient reason in declining to interfere. Judgment affirmed.