Gerish v. Johnson

By the Court Flahdeau, J. This was an action for the recovery of the possession of personal property. The complaint is very imperfect, and was demurred to by the Defendants. The demurrer was sustained by the Court below with leave to the Plaintiff to amend, which he did not avail himself of. Thereupon the Defendant moved for judgment, and the Court on the 31st day of December, 1858, rendered judgment in his favor, which, after reciting the preliminary steps that had been taken, grants the following relief: “ It is adjudged and decreed that the Defendants have final judgment for the return, to the possession of the Defendants, of the personal property mentioned and described in the complaint; that said • John Johnston, or any person having possession of said property, shall, upon the service of a copy of this judgment forthwith deliver the said property into the possession of the Defendants as aforesaid, and that all further and other proceedings on the part of the Plaintiff herein be forever stayed, besides the costs of this action.” This judgment was signed by the Judge. The Defendant subsequently discovering that this judgment [26] did not furnish, them the relief they desired, probably because they could not reclaim the specific property, moved the court, at the Le Sueur Term, in March, 1860, for leave to amend the same by inserting therein the value of the property, and the damages they had sustained by its detention from them. This motion was denied March 24th, 1860, whereupon the Defendants sue out a writ of error from this Court, whether to bring up the judgment of December 31st, 1858, or the order of March 24th, 1860, does not appear in the papers furnished to the Court, but it can in no way be material, because if directed to the judgment, it fails from having issued more than one year after the rendition thereof. Pub. Stats. 623, See. 22. And if it is designed to bring up the order, it is a sufficient answer to it to say that a writ of error lies only to a final judgment. Pub. Stats. p. 621, See. 2; Ib. 623, Sec. 22, and that an order can only be reviewed upon appeal. Pub. Stats, p. 621, Sec. 11. But overlooking the technical objections which are sufficient to defeat the writ of error in this case, what little we can gather of the merits from the meagre statements contained in the paper books, all goes to satisfy us that the Judge was right in refusing the motion to open and amend the judgment. Diligence is required in all such applications ; the statute limits the time within which such applications can be made to one year after notice of the judgment. Pub. Stats, p. 544, See. 94, and only then relieves from a “judgment order or other, proceeding,” when it is taken against a party “ through his mistake, inadvertance, surprise, or excusable neglect.” This is a limiting and not a granting act; and it by no means follows that because a party may make' such a motion within the year, that he has always a year to make it in. He is in each.instance bound to make the motion with diligence, and show ■ the existence of some one of the causes specified in the statute. All the effect of the statute is to prevent him from making the motion after the expiration of the year. It does not satisfactorily appear from the papers furnished the Court, when the motion was in fact made, but it does appear that it was heard at the March Term of the Court in Le Sueur county, in 1860, which was a year and two months after the rendition of the [27] judgment. This alone was a sufficient ground for tbe Court below to deny tbe motion; and as it no where appears that tbe motion papers presented any grounds of relief whatever, we are bound to presume there were no merits in it. Since tbe amendment was made to tbe rules allowing tbe paper books to be abridged by leaving out all matter not pertinent to tbe questions involved, there has been such a desire to curtail their contents on tbe part of the bar, that in many cases we find it quite difficult to tell anything about tbe case without a reference to tbe return. Tbe books should in all cases contain a statement of the case briefly, as well as every material paper which bears upon the questions to be decided by the Court. In this case it seems that the Plaintiff in error desires a review of the order, denying the motion to open the judgment, and yet he furnishes us with nothing but the order itself, and not one of the papers upon which the motion was made; how he expected that we could determine whether the Judge erred in his decision or not, is hard to see. These comments are made in this case, because it is of great importance to suitors and the Court that cases should be fully presented, and also because no rights can be lost by the omissions in this instance, as the case must fall for the reason first stated. "Writ of error dismissed.