Yeier v. Scottish Union & National Insurance

Opinion by

Henderson, J.,

The judgment for the plaintiff for want of an affidavit of defense was regularly entered in accordance with the established practice. The application to open the judgment was made by E. A. Innes who describes himself as “the adjuster and authorized representative or agent of the defendant above named in the subject-matter of the above stated action.” He received from the defendant a copy of the summons served on the insurance commissioner but states that he has no recollection of having received with it a copy of the plaintiff’s statement and therefore avers that he had no knowledge that the same had been filed until informed that the judgment for want of an affidavit of defense had been taken. Upon receipt of that notice, however, he made search among the papers in his office and found that at some time a copy of the statement of claim had been forwarded to him but he has no recollection of ever having seen it or heard of it until informed by the defendant’s attorney that judgment had been entered. The substance of the affidavit is, therefore, that although the petitioner had caused an appearance tó be entered for the defendant and had received a copy of the statement of claim he overlooked the subject or it was not so impressed on his mind that he had any recollection of the transaction. There is no suggestion of any misleading representation or inducement of any kind by the plaintiff or her counsel by which the defendant or the petitioner as the defendant’s agent was put off guard. The rules of practice are made to expedite the business of the court and to promote the speedy administration of justice. It is within the discretion of the court to open a judgment for reasonable cause shown and such exercise of authority will not be reviewed except where such discretion has been exceeded. In the present case we are of the opinion that no cause was exhibited which should ha ve moved the court to open the judgment. It was a clear case of inattention not excused or accounted for. We think therefore the defendant was not entitled to the relief sought.

The order is reversed without prejudice to the right of the defendant to apply for a reliquidation of the judgment.