Harper v. Drake

Lowe, J. The principal point insisted upon by appellants is, that § 3150 of thé Revision of 1860, limits the setting aside of a default to the term at which it was taken, whereas, the court ordered the opening 'up of , the default at a subsequent term. It will be remembered that this'was. a naked default, upon which no judgment or decree had ever been entered. If such a decree had been entered thereon at the term to which it was- continued, and a motion made at that term to open or set aside said decree, it would, we suppose, be within time, according to the true intendmenkof said section. This construction would seem to be borne out by the provisions of the two preceding sections, from which it may be inferred that the limitation as to time within which such motion is to be made, refers to judgments by default, whilst it may also be. true that simple'defaults taken in vacation are to be set aside at the commencement of the succeeding term. In determining the question of a meritorious ’defense, and whether a sufficient excuse had been shown for the default, the court did not, in this case, abuse its discretion. But it is said that while these questions do address them-, selves to the discretion of the court, yet that the time within which the motion is to be made for the opening of a [536] default is beyond this discretion, being a matter of positive statutory regulation, which is to be observed with unrelaxed vigor. The case before us, however, illustrates the fact that this, as a proposition of law, is rather broad. For instance, this is a creditor’s bill to reach property, the title of which is in a third person. The creditor’s right to do so, arises only after he has exhausted his remedy at law, the legal, and perhaps only evidence of which is a judgment, and that the same is unsatisfied, because of the insolvency of the judgment debtor. But when this motion was made, the judgment at law which was the foundation of this proceeding, had, upon the order of the court, been set aside, which, evidently, rendered the decree by default in this case ineffectual. Again, James P. Drake, Jun., was the principal defendant, as he held the property sought to be subjected. Against him no default had ever been taken, and, of course, the judgment against the other defendants was of no practical avail to the plaintiffs. But, it is claimed, at the death of the said James P. Drake, Jun., being at the time single and without issue, his rights of property had descended, under the law, to his co-defendants, who were his parents. If so, it follows that they carried with them his rights of remedy or defense also; and, inasmuch as James P. Drake, Jun., if alive, would have had a standing in court, so now, that he is dead, his legal representatives have a like standing. Under all the circumstances, we do not think there was error in the action of the court below, and its'order in the premises is Affirmed.