Opinion
May Term, 1818.
In all cases where the party against whom judgment is rendered, has had no opportunity to bring forward his defense, he shall be allowed it. (See Newnan v. Campbell, M. Y., 63, and cases cited.)
Thus, where the surety recovered judgment against his principal in the County Court by motion of which the principal had no notice, the latter was allowed a trial in the Circuit Court upon certiorari, showing in his petition that he had paid to his surety an indemnification before judgment against him.
The defendant below was moved against in the County Court, as principal, to recover back money paid for him by the plaintiff as surety. He had no notice, and judgment was entered against him. He removed the cause into the Circuit Court by certiorari. He stated, in his petition, that he had paid to his surety an indemnification before judgment was entered against him.
In all cases where the party against whom judgment is rendered has had no opportunity to bring forward his defence, he shall be allowed it. If a sci. fa. be against one, as heir to his ancestor, to have execution against lands alleged to have descended from the ancestor, and the heir, being tenant in tail and thinking himself safe, fail to make defence after sci. fa. returned against him, and execution be awarded against him by default, he shall never be relieved because he would not plead when he might. 1 Levinz. 41; 1 Sid. 54; Ray. 19; 1 Sid. 7, 12; Salk. 93, 204; 2 Str. 1075; 14 Viner, Heir, B. page 238; 5 Com. Dig. Pleader, 3 sec. 9. But if the judgment be given upon two nihils returned, the party shall not thereby be excluded from his defence; he shall be allowed to make it afterwards upon notice in audita querela. Here is not even a sci. fa. and two nihils; and the reason for allowing the defence is much stronger. The sci. fa. in the hands of the sheriff may be seen by some one who may speak of it to the defendant, and thus he may get notice; but, in this instance, there are no means by which notice could be conveyed to him. The acts of summary relief ought to be so construed as to put an end to actions, not so as to multiply them. Better, therefore, to have a re-examination by certiorari than by bill in equity, and to settle the whole controversy in the first action. And, moreover, these acts ought to be so construed as not to deprive the defendant of any just defence he may have, as payment or the like, any more than if he had been sued at the common law. The Legislature, never could mean, for the sake of despatch, to take from the defendant any valid defence he might have. This introduces every legal defence whatsoever. The proceeding under the act far relief, by judgment on motion, is of no advantage unless in cases where the defendant to the motion has not any defence to make.
Reverse the judgment, and remove the cause with directions to receive the pleas mentioned in the petition.