Gonzalez v. Norwich Union Fire Insurance Society

HamiltoN, Judge, delivered tbe following opinion: This is a prompt application by tbe defendant to bave set aside a default and judgment entered against it a few days previously. Tbe showing made is by an unsworn motion stating that counsel mistook tbe date and that there is a good defense. 1. Matters connected with tbe trial of a case are in general controlled by Revised Statutes, § 914, Comp. Stat. 1913, § 1537, which provides that tbe practice of local courts shall be followed. There is an exception which has been made in this forum relating to a jury trial as such, inasmuch as there is no trial by jury in civil cases in Porto Rico. Otherwise, however, the general rule is followed. It is sometimes expressed that [118] such, conformity extends up to and including the judgment, but does not include either the means of enforcing the judgment or any proceedings as to appeal. 4 Fed. Stat. Anno. 576. A judgment by default will come within the principle, and in Porto Eico is governed by the Code of Civil Procedure. 2. The same principle applies to setting aside a default. Code of Civil Procedure, § 140, provides that this is in the discretion of the trial court in certain cases there named. These seem to conform to the general practice, which requires (1) a showing of some good excuse for the oversight, and (2) facts showing a good defense to the complaint, preferably by tendering an answer to be filed; all (3) to be by affidavit or otherwise under oath, and (4) allowed upon terms, usually paying the costs of suit up to date. Brown v. Philadelphia, W. & B. E. Oo. 9 Fed. 183. There are several cases in the local supreme court which construe the local statute in this manner. Setting aside a default upon such a showing is a practice almost as old as common-law courts themselves. It has come down to American practice from the English. 3. The application in this case does not contain all the elements above set' out, but, as there seems to be no opinion of this court reported on the subject, the court will in this instance (not to be a precedent) permit amendment of the application to conform with the above principles, and will reset the case to allow opportunity to make such amendment. 1 At that time the application will be granted or refused, as the facts may justify. Application reset for June 4.