Springfield & Northwestern Railway Co. v. Ross

Mr. Justice Scott delivered the opinion of the Court: Both the railway company and the receiver appointed by the Federal court have joined in this appeal, and assigned errors, but there can be no pretense that the judgment was erroneous as to the company. There had been service of process, upon the company, and appearance by attorney, and one trial had upon the merits of the case, after which the judgment rendered was set aside, under the statute, on its motion. As to the motion made by the receiver, to vacate the last judgment rendered, there is one conclusive reason why it should not be granted. The affidavit filed in support of the motion shows no merits in the defense the receiver proposes to make. It is alleged, on information and belief, that plaintiff, by a written agreement, in consideration of the promise of the company to pay him a certain sum of money, sold the land in controversy to the railway company, and that the receiver has reasonable hopes of obtaining possession of the agreement or proving its contents. The affidavit contains no averment the consideration mentioned had ever been paid, or any positive averment any such agreement existed. It is fatally defective in both respects. The judgment will be affirmed. Judgment affirmed.