Hershy v. MacGreevy & Yantis

Cockrill, C. J. This is an appeal from a judgment by default in a suit upon an account. The court heard no testimony on the rendition of judgment, but the judgment entry recites that the account was duly verified. 1. Btidence: verified on account In suits upon accounts the statute makes the affidavit of r. , the plaintiff that his account is “just and correct prima fade evidence of the fact. No further burden is cast upon him until the correctness of the account is denied. Mansf. Dig., sec. 8915. Upon failure to answer the material allegations of the complaint they stand confessed; the affidavit proves the value of the goods sold or services rendered, and there is no necessity for proof of any other fact to enable the court to pronounce judgment. Ib., 5175. It is not necessary that the affidavit to the account should be in the language of the statute or that it should be attached to the account itself. The spirit of the statute is complied with when, as in this case, the complaint, after a proper reference to the account, which is attached to it, for the several item.3 and their separate value, alleges that the services performed are worth the amounts charged and that the defendant is justly indebted to the plaintiff in the amount claimed, and the complaint is itself properly verified. This is, in substance, a verification of the account. 2. pleading from0 files for scandaious mat-The court did not abuse its discretion in refusing to open the judgment. In the original motion for relief . . against the default no effort was made to show a mentónous defense to the action. Several amendments to the motion were subsequently filed in which it was alleged, that some of the items of the account were in excess of the contract for services agreed upon by the parties, and that in others a /charge was made in excess of the value of the services rendered; but these amendments were replete with irrelevant and scandalous matter and the court properly caused them to be stricken from the files. As to diligence in making his defense none was shown. The defendant alleged, in his first motion, that he supposed he had counsel who would attend to his interest but his subsequent allegations and the exhibits which he filed in support of them show that he was not sincere in his first statement; for his excuse in the end for this negligence was that no resident attorney would undertake to make his defense for him, and that the non-resident attorneys applied to would appear in his behalf only upon condition that the case could be transferred to their home court. The circuit judge, doubtless, understood that the inability to procure legal assistance had been brought upon the defendant by his own conduct, and his paltering with the court in the matter in hand could not commend the reasonableness of the excuse for suffering the default. Affirm.