Fleming v. State ex rel. Arnold ( 1928 )

HOUCK, J.

We have read the petition filed in the lower court and the evidence offered on the trial. There is no charge or claim of fraud set forth therein, and no evidence was offered as to it. The real foundation upon which the judgment below is sought to be set aside is mistake and inadvertence on the part of Fleming, in that he did not intend to enter a plea of guilty to the charge of bastardy, in the Common Pleas Court, and did not intend to waive a jury trial, and that he was ignorant of his legal rights in the premises. And further, that if the judgment is set aside he has a complete defense in fact and law.

Giving the most favorable construction to the evidence offered in the trial to the plaintiff in error, there is an absolute failure of proof to establish these claims made by Fleming, or either of them. In this case the question presents itself, did or did not the trial judge commit prejudicial error, under the established facts, and the law controlling them, when he refused to set aside the judgment?

It is elemental, and needs not to be dwelt upon at length, that the setting aside of a judgment is largely within the sound discretion of the chancellor. His action will not be disturbed by a reviewing court except for a clear abuse of said discretion, basing it upon all the facts in the case.

Under the allegations of fact, as stated in the petition and the evidence contained in the bill of exceptions now before us, we must and do find no prejudicial error in the record, and the judgment of the Common Pleas Court should be affirmed.

(Shields, J., Lemert, J., concur.)