Gallup v. Manning

Granger, J. The petitioner seeks the interposition of a court of equity to relieve him from a judgment at law upon a debt which he justly owes the respondents—a debt which he ought to have paid without suit, and against which he does not pretend that he has any legal or equitable defense, and with regard to which it is found that, at the time the judgment complained of was rendered, he was justly indebted to the respondents in a sum equal to the amount of the judgment. But the petitioner’s ground of complaint is, that the writ upon which the judgment was based was not legally served upon him, and that he had no legal notice to appear. The defect in the service was a mere clerical error on the part of the officer who had the writ to serve. • The court to which the writ was returnable was held in February, 1879, and the officer in the copy left in service by mistake wrote the word “October” instead of “February.” But the writ itself was proper in all respects, and so far as it appeared by the officer’s return was duly and legally served. The petitioner knew when the terms of court were held, and that the [30] officer had made a mistake. The writ was dated in October, 1878, and he knew that the next term of the court after the date of the writ, and after the copy was left with him in service, must have been in February, 1879, and could not have been in October, 1879. And in December, 1878, the petitioner, it is found, declared that he knew the time of the court to be in February, but as his copy read “October ” he should not go near the court. The principal object of serving writs as provided by law is to give the defendant notice of the time and place of holding the court, and if the legal steps are not pursued in the service of the process, the defendant has his remedy by plea in abatement, if he chooses to avail himself of the defect. But the whole service may be waived, and of course any particular defect in it. If in this case the defendant had appeared and neglected to plead the defective service in abatement, but gone to trial on the merits, it needs no argument to show that he would no longer have ground to complain of the defective service. Under the facts found here he does not stand any better in equity. It may not be strictly a waiver of his right to plead the defective service in abatement. But he has by his conduct placed himself upon utterly inequitable ground. He kept away from the court, with full knowledge of all the facts, for the purpose of allowing the plaintiffs in the suit to take a judgment against him, which he thought he could get set aside as invalid; and now when he comes into a court of equity and asks its aid to carry out his inequitable purpose, he comes with no claim whatever to equitable interference. An injunction is not his right, but the granting of it rests in the discretion of the court, and the court will never lend its aid to one who has a bare legal right and no equity. But the petitioner shows no reason for setting aside the judgment. The court had, upon the face of the proceedings, full and complete jurisdiction of the parties and the cause, the writ appeared by the officer’s endorsement to have been properly served and returned, and the default was entered on the ninth day of the term. No fault is to be imputed to the plaintiffs in the suit; they have taken no undue advantage of [31] the defendant, and the judgment represents only the actual debt which the petitioner owed and still owes to the respondents. That a small sum has been added to the debt in costs is wholly the fault of the petitioner. There is no error in the judgment complained of. In this opinion the other judges concurred.