Russell v. Blakeman

Vanderburgh, J. This is an appeal from an order vacating and setting aside a judgment and subsequent proceedings thereon, and granting the defendant Blakeman leave to serve an answer in the ease. No specific rule can be laid down for the exercise of the discretion of the trial courts in such cases, and the appellate court, in reviewing their decisions upon such applications, will only look into the proceedings so far as to see whether there has been any abuse of discretion. Upon the whole record in this ease considered together, we are unable to say that the application was not meritorious, or that the order g^nting it was not within the reasonable discretion of the court. On the contrary, it would apparently have been a great hardship as well as injustice to the defendant Blakeman if the application had been denied. His mortgage upon the real estate in controversy, which he alleges was given for the purchase-money thereof, is entirely cut off by the proceedings in this action, of which he had no knowledge whatever. It amounts to $4,000, while plaintiff’s claim was adjudged to be $381, and the mortgaged premises are worth $8,000. The summons was served by publication, the affidavit for which alleges ignorance of the defendant’s residence. . No copy of the summons was mailed to or received by him, and by his affidavit it appears that he is a resident of the state of Massachusetts; that he had no information whatever of any of the proceedings until about the time of this application, which was made promptly, and evidently in good faith. It also appears that he had no knowledge whatever coneern [466] ing the plaintiff’s claim, or the existence thereof. His affidavit, which states all the facts within his knowledge about the case, is supplemented by that of his attorneys in respect to the records here, including an affidavit of merits by them, and by the proposed answer, under which he is entitled to contest the validity and amount of the plaintiff’s claim, and the question of its priority over his mortgage. No opposing affidavits were introduced, and the good faith of the application can hardly be questioned. Besides, the plaintiff was the purchaser at the sale, and his legal rights can be fully protected in the further proceedings. We think, in view of the case as made, the court was not obliged to insist upon the strict rule requiring a separate affidavit of merits by the defendant in addition to the other evidence. The leading and material facts upon which the relief sought might properly be granted are patent and undisputed. The defendant’s debt was secured by mortgage upon real estate amply sufficient to secure both his and plaintiff’s claim. His case was also brought clearly within the equitable rule authorizing the court to relieve him from the proceedings against him,- whether it be the judgment, or the proceedings had thereon, or both, with liberty to answer and resist or contest the plaintiff’s claim. The statute (Gen. St. 1878, c. 66, § 125, amended, see Laws 1887, c. 61) is applicable to this class of judgments as well as others, and simply regulates the ex^cise of the equity powers of the court over its own judgments and proceedings in execution thereof. And upon a proper application, seasonably made, the district court may exercise such powers in favor of a party whose rights have been injuriously affected, and in its discretion grant appropriate relief by setting aside or modifying its judgments, orders, or proceedings, as justice may require. Brown v. Frost, 10 Paige, 243; Thomas, Mortg. § 966; Gould, v. Mortimer, 26 How. Pr. 167; Matter of Fuller v. Brown, 35 Hun, 162; Freem. Judgm. § 500a. Order affirmed.