Smith v. Moles

The defendants’ property was restricted by a covenant in the deed prohibiting the building of a garage within seven feet of the property line. An attempt was made in 1919 to erect a garage upon the premises in direct violation of this restriction. An action was brought to enjoin its erection. The defendant, after filing an answer, was advised that the case was defenseless, and thereupon by consent suffered a default judgment to be entered.

*400The judgment, however, was broader than the restrictions contained in the deed, and forever restrained the erection of a garage upon the premises, even if it was so located as to comply with the restrictions. This, obviously, the court never intended to do, and, if it did so intend, it was without power to decree. While the motion is in the nature of an application to open a default, yet the facts establish a clear case requiring the modification of the judgment to conform to the restrictions.

The motion to open the default is denied, but the motion to modify the judgment as above indicated will be granted. Submit order on notice.