v.
Agabus Winters
It is quite too clear for argument, that the petition in a suit against the plaintiff and another, and the prayer therein for an injunction to stay proceedings in this suit, was no answer to the action, and interposed no impediment to the rendition of the judgment by default, for the want of an answer.
The only question upon which there is cause to hesitate, is, whether, upon the affidavit of the attorney, to the effect that it[*797] was not his intention to suffer judgment to go by default, and that he had failed to file his answer under the mistaken belief that the petition for an injunction would prevent the rendition of judgment, and that he was prepared to file an answer containing a meritorious defence; and the further affidavit of the party that he had a meritorious defence, and the tender of his answer showing such defence and his affidavit to the truth of it, the Court ought not to have set aside the judgment by default and received the answer. The application addressed itself to the sound discretion of the Court, to be determined by considerations of convenience and equity. And under the practice of other Courts the application, it seems, would have prevailed, upon such terms, however, as to costs, as the Court deemed equitable. (6 Johns. R. 131; 14 Id. 343.) The practice of other Courts, however, is not obligatory. But the practice in our own Courts ought to be referable to some general principle, to produce uniformity; and this renders it proper that we should revise the judgment, although upon a question resting in some degree in the discretion of the Court. It is obvious that such applications ought not to prevail, where the effect would be to delay the trial, unless upon a good excuse for the default, and the presentation of a meritorious defence; nor in any case, where it would be to let in an unconscientious, or a merely technical defence.
In a late case at Austin we held that the Court rightly refused to set aside a default, where it would have been to let in the defence of the statute of limitations. (Foster v. Martin, supra, 118.)
But where the trial has not been delayed, and there is an affidavit of merits, we think the default should be set aside and the answer received, upon some showing by way of excuse for the failure to plead in time. The excuse proffered in this case was certainly very slight. But it appears that the counsel acted under a mistake of law. Both counsel and client appear finally to have done their best to make amends; they present, what seems to be a strong case of merits; and there is reason to apprehend, that if not allowed to make defence, irreparable injury may be the consequence. For, having no such excuse for not having made his defence to the action as a Court of Equity would deem sufficient, the defendant may not be entitled to an injunction to stay execution upon the judgment, until he shall[*798] have established his cross-demands against the plaintiff in another suit.
It does not appear that the trial would have been delayed; the plaintiff would not have been injured or hindered, by reason of the default; and on the whole, we conclude that the Court ought, under the circumstances, to have set aside the judgment by default, upon the payment of costs, and permitted the defendant to answer to the merits of the action; and that the Court erred in refusing it. The judgment is therefore reversed and the cause remanded for further proceedings.
Reversed and remanded.