Weisman v. Newton Beef Co.

Grant, C. J. (after stating the facts). He who invokes the aid of a court of equity to set aside a judgment rendered against him in a court of law must show by his bill that he has been diligent in prosecuting his remedy at law. If he had the opportunity to interpose his defense at law and failed to avail himself of it, a court of equity will close its door to him. Complainant does not allege that he was not informed by his attorney of the date of adjournment, and the affidavit of his attorney is entirely silent upon this point. If, [513] however, his attorney failed to notify him and he relied upon his attorney to attend to the suit and his attorney neglected it, the client alone, so far as the opposite party is concerned, is responsible for the negligence of his attorney. Foster v. Wiley, 27 Mich. 244; Clark v. Ewing, 93 Ill. 577. Neither the company nor its attorney were under any obligation to notify complainant or his attorney of the adjourned day. It was the duty of the defendant in that suit and his attorney to appear in the justice’s court on the adjourned day, the 26th. Had either of them performed this duty, the complainant would have had ample time either to have had the judgment set aside by consent, or, failing in that, to have applied to the circuit court under the statute for leave to appeal. Under > the allegations of the bill, the company could have taken judgment by default on the adjourned day, for complainant was not present to make defense. Complainant paid no attention to the suit against him for nearly three months, and not until an execution was presented to him. He proffers no excuse for his neglect, neither does his attorney. He therefore has no standing in a court of equity, for he has not been deprived of his remedy at law by the fraud of the opposite party, or by accident or mistake, unmixed with fault or negligence on his own part. Kelleher v. Boden, 55 Mich. 297; Gray v. Barton, 62 Mich. 196; Valley City Desk Co. v. Insurance Co., 143 Mich. 468; Hiles v. Mosher, 44 Wis. 601. Decree reversed, with costs of this court, and case remanded for further proceedings. Blair, Montgomery, Ostrander, and McAlvay, JJ., concurred.