Howell v. Barnes ( 1870 )

Eeade, J.

Judgment was rendered against the present plaintiff after he attained his majority, upon a bond which he executed during his minority, and this is a motion to vacate the judgment, upon the ground that the suit in which the judgment was rendered, was by attachment, and he had no actual notice thereof, and, therefore, did not plead his infancy, and he asks that he may be permitted to plead it now.

Treating the motion as a petition for a certiorari, we have this case: Judgment rendered August 1866; application, for certiorari March 1869. The delay unexplained is gross laches. The explanation must come from the plaintiff. The explanation offered, is, not that he did not know of the existence of the judgment, for it seems that he knew of it in November 1866, hut that he did not know of its “voidable character ” until about the time of this motion. His counsel construes that to mean, that he did not know the fact of his-minority. But that is not the meaning: He means that he did not know that his non-age would have enabled him to avoid the bond by plea, or that the judgment might be vacated, and his plea let in. This ignorance of the law is no excuse.

The point made by plaintiff’s counsel, that no facts were found by his Honor on which the motion was disallowed, makes it the worse for the plaintiff; for, as before said, the facts in excuse must come from him, and if no facts are found, then, of course, no facts are found for him. It does not appear that the plaintiff offered any evidence which his Honor would not hear. We have then the case of a motion for a certiorari, without any evidence to support it. If we look to the complaint and answer for the facts, we find that-what is alleged by one is expressly denied by the other. So we still have the motion without any support, and of course, it cannot be allowed.

But probably it would be more satisfactory for us to say that we have looked- into the testimony accompanying the case, which we suppose was intended as a substitute for the facts, and it appears plainly enough that his Honor would have been warranted in declaring the facts to be, that the judgment passed in August 1866 without actual, but with constructive and sufficient, notice to. the present plaintiff; that he knew of it in November 1866, as appears by his own affidavit, asked indulgence and.-pfomised to pay, and never moved to vacate until' March 1869. Upon such a state of facts his Honor ought to have refused the motion. See Cardwell v. Cardwell, ante, 621, and Waddell v. Wood, ante, 624.

No error.

Per Curiam. Judgment affirmed.