McDougall v. Townsend

By the Court, Smith, J. We think the motion to vacate the judgment of the Circuit Court ought to have been granted, and that the judgment of the 16th of January, 1857, ought not to stand, for the reason that it was evidently rendered in surprise of the appellant. He was entitled to a trial, and was no more chargeable with laches or delay than the appellees. We. are not disposed to favor such sharp practice, and as the whole matter is properly addressed to the equitable consideration of the court, we are disposed to reverse the judgment and order a trial. Besides, there was an issue in the case, pending and untried, which ought to have been disposed of before judgment. New trial ordered.