Lent v. Jones

By the Court.

I think the default of the defendant is so far excused, that if the defendant had shown, by affidavits or otherwise, that manifest injustice has been done, the judgment should be set aside or suspended, and a new trial ordered. Accidents, such as occurred in the present case, are liable to happen without any fault either in the party or his attorney; and if manifest injustice were shown to have resulted to the defendant, they ought to, and would, avail as an excuse for the default.

But the defendant here has not only failed to show that manifest injustice has been done to him, but on comparing his affidavit with the proceedings on the trial, it seems to me it would be unjust to the plaintiff to delay the recovery of his claim.

How far it is proper to look into counter,affidavits, upon such an appeal, I entertain some doubt;" but a defendant who seeks to prove that an injustice has been done to him, by allowing to the plaintiff a claim which is fully supported *54by the testimony of an indifferent witness, should offer further proof than his own unsupported affidavit. To order a new trial upon the proofs before us—and no other proof is shown by the plaintiff to be within his power—would be of no avail to him. If he cannot produce the affidavit of any witness, he should at least show that there are witnesses who refuse to give their affidavits, and who have knowledge of facts to which they can be compelled to testify, and which, if proved, would reduce or disprove the plaintiff’s claim. In a case like the present, it is obvious that if the work and materials are over charged, numbers of men, conversant with the business, might be found to state its value.

If the counter affidavits are to be regarded on this hearing, the injustice of opening the judgment is still more palpable. The proofs, then, show a plain case of attempt, by the defendant, to delay the plaintiff, after repeated promises, with the items all before him, to pay the plaintiff’s bill.

I think the judgment must be affirmed.

Judgment affirmed.