Cleckley v. Beall, Spears & Co.

Walker, J.

When suit is instituted against a party, it is his duty promptly to make his defence, if he. have any, at the proper time, and in the proper manner. Stroup vs. Sullivan, 2 Kelly’s R., 275. He cannot permit a judgment to be rendered against him at law and afterwards have it set aside in equity, unless he had a good defence of which he was entirely ignorant, or he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part. Revised Code, sec. 3074.

In this case the'party had a distinct knowledge of his defence at the time he was sued, and he shows no sufficient reason for his failure to set it up in the Common Law action. Having failed, without a sufficient legal reason to make his defence at the proper time and in the proper manner, the defendant must suffer the consequences of his own laohes. The laws do not favor the negligent and sleepy.

' Judgment affirmed.