Shricker v. Field

Wright, C. J. One Darlington is made a party to complainant’s bill. He was also a party defendant to the petition of Field and wife, to foreclose their mortgage upon the ground that he held a subsequent incumbrance. In this case no relief was prayed against him, nor is it charged that he is doing, or is about to do any act to the injury of complainants. Indeed, no reason is shown for making him a party so far as relates to the injunction part of the case. It is objected however, by complainants that the court erred in dissolving the injunction, until all the defendants answered, and this is the first question to be determined. All of the defendants, against whom any relief was asked, or who were charged with doing any act, or with any intent to do anything to the prejudice of complainant’s rights, did answer. The rule contended for by appellants, has no place, where the party failing to answer is merely nominal, or occupies the position that Darlington does in this caso. 1 Eden on Injunctions 117 (marginal) and the authorities cited in note 1. A further objection is that the answer is not sworn to, that it sets up new matter, and that it was erroneous to dissolve the injunction upon such answer and without proof. If this answer admitted the allegations of the bill, and set up matter in defence, or avoidance, it might have been erroneous to dissolve the injunction before the coming in of the proof. Not necessarily so where every material allegation is denied, and the whole equity of the bill expressly negatived. In such a case it can make no difference that the answer also contains new matter in addition to that in denial. It is true, that even where all the equity of the bill is denied by the answer, it does not follow as a matter of course that the injunction will be dissolved, for the continuance, or dissolution of the injunction rests very much in the sound discretion of the court, to be governed by the nature of the case. [371] Roberts v. Anderson, 2 John. Ch. 204. But while proof might be required where the answer confessed the bill and set up new matter, there is no rule requiring such proof where the complainant’s equity is denied. Livingston v. Livingston, 4 Paige 111. The answer is sworn to by Grant, the attorney for the parties in interest, (Field and wife,) and he states that he believes that all of the allegations are true, and so far 'as they are stated upon his own knowledge he knows them to be true. Without stopping to inquire whether it was proper to dissolve the injunction upon an answer thus verified; or whether the complainants, having waived a sworn answer, can object that the one made, (treating it as npt sworn to) is not to have the same force and effect, as if duly supported under oath; we come at once to the main question, and that is, whether upon the case made by their bill, complainants are entitled to relief. And we are clear, that they are not. Shxicker’s equity is no greater than that of Johnson. At the time of the foreclosure of the mortgage, he had no interest in the property. Since that time he voluntarily acquired the title under which he now holds. He therefore bought with the full knowledge of the amount*'of the judgment, and of the claim made by Field and wife, to the land, not only so, but he holds under Dillon and Impey, who were parties to the proceeding to foreclose, and stands in their shoes. We are then to treat the case as though Johnson alone, asked relief. In cases of this character, it is not sufficient to show that injustice has been done, but that it has been done under such circumstances as authorized the interference of a court of equity. It should appear to be against good conscience to execute the judgment, and either that the injured party could not have availed himself of the facts set up, in a court of law, or that he was prevented from doing so.without fault or negligence on his part, by some fraud or accident. This is the general statement of the rule. 2 Story’s Eq. Jur. section 887; Mitf. Eq. Pleadings 131; 1 Eden on Injunctions [372] 23; Broomley v. Holland, 5 Ves. 610 ; Rathbone v. Warren, 10 John. 587. In the case before ns, there is no sufficient reason shown by the bill, why the complainant Johnson, did not avail. himself of the facts therein set up, in defence to the action in the court of law. He knew of them before-hand, and it was his own fault, or negligence, or that of his attorney, and not by reason of any fraud or accident, that the defense was not interposed at the proper time. It is true that it is averred that reliance was placed upon what was said by the counsel for the petitioners in that case, and yet it is only claimed that he “ gave Lane to understand that when judgment should be rendered, it should be for the just amount due, deducting credits.” Rut what credit; to what amount; of what date, and whether to the extent claimed by Lane, as counsel for Johnson, or otherwise, is not stated, and no where appears. It was the misfortune of Johnson, if his counsel relied upon a conversation thus indefinite in its nature, and he cannot complain if as a consequence judgment was rendered for a sum greater than in good conscience was due upon the mortgage. Champion v. Miller, 1 Jones N. C. Eq. 194, and cases there cited; Conway v. Ellison, 14 Ark. 360; 24 Vermont 354; George v. Strange, 10 Grat. 49: Dodge v. Strong, 2 John Ch. 230; Manne Ins. Co. v. Hodgson, 7 Cranch. 332; Truly v. Nicholson, 4 Howard, 141; 1 Eden on Inj. 69-74. The allegation in the bill that complainant’s counsel supposed, or believed that under the law, the court could 'not enter judgment at the first term after the commencement of the action, cannot aid appellants. If to enter the judgment at that term was irregular, Johnson had his remedy by appeal. If it was regular, then complainant only stands in the position of. a party who has mistaken the law, and the maxim that “ ignorantia juris non excusat,” is as fully recognized in equity, as at law. Johnson did not appear to the action to foreclose the mortgage. He was legally served, however, and had due, and sufficient notice of the pendency of the same. If he did not examine the records, or take suffi [373] cient care by himself, or counsel, at the proper time, to see that the judgment rendered was not excessive, it was his own fault and for his negligence he, if any one, must suffer. The order dissolving the injunction is affirmed.