Hilderbrandt v. Robbecke

By the Court. McMillan, J. The complaint in this action is not very accurately drawn, but upon a motion after judgment, at least, is sufficient. The judgment by default was regularly entered against defendant ; if set aside or opened it must be for cause shown by defendant. The affidavit of the defendant used in the court below upon the motion to open and set aside the judgment and for leave to answer, is wholly uncontradicted. A recital of the facts stated therein is unnecessary here. It suffices to say, we think they show clearly that the defendant exercised all the diligence which could reasonably be required of him to defend the action; that he was misled and deceived by the attorney employed by him; that the entry of the judgment against him was a surprise, and that he has no redress against his [102] attorney who is insolvent. The defendant’s verified answer accompanying and presented with the affidavit sets up a meritorious ground of defense, and the defendant moved without delay for relief from the judgment entered against him. It would be difficult to find a case in -which a judgment should be opened or set aside for inadvertence, surprise or excusable neglect, if not in this one. ■ We think the motion should have been granted. The order appealed from is reversed.