Hale v. Griswold

Chipman, Ch. J. The default was not erased in this case, by authority of the statute regulating civil process. That extends, as was observed, only to a default for non-appearance of the defendant on the first day of the term to which the writ is returnable. The Judges have, certainly, a discretionary power to set aside a judgment rendered on default, if they shall be convinced, that under the circumstances, the defendant is equitably entitled to relief This is a favour to the defendant, and may be granted on condition that he pays cost to the plaintiff, or, that he waive some advantage which he might otherwise have of the plaintiff. But I am clear, that in such case, the Judges can have no power to order the plaintiff to pay any additional fees, as a condition of his proceeding in the cause after the erasure of the default. The law allows no such fees to be paid a second time, unless where the default is set aside under the' statute as just mentioned. The Judges may not, either of right, or in their discretion, demand or receive of any party, greater fees than are by law allowed. All rules, in the regulation of practice, which should give them greater, or other fees than are allowed by law, would be illegal and void. To refuse justice to a party, or to render judgment against him, for a refusal to pay fees illegally demanded, is certainly wrong. It may be a wrong of the Judges, but a party taking a judgment, always takes it at his peril. The setting aside of the default in thiá case was a matter in the discretion of the Judges, which cannot be re-examined in this Court on Error. But the judgment of non-suit being entered, not in the [109] common course, for default of the plaintiff’s appearance, or, for non-compliance with any legal rule, but on a ground manifestly illegal, and that illegal ground of the judgment appearing in the record, I am clearly of opinion that it is matter of Error and proper to be examined in this Court. The other Judges concurred. Judgment of the County Court reversed.