Pierce v. Cole

Lipscomb, J.

This suit was brought by Cole, the appellee, on a note of hand, i. e. : One day after date, we or either of us promise to pay Samuel Cole or bearer, the sum of four hundred dollars, bearing interest from date at ten per cent., for value received of him this the 21st of August, 1864. (Signed,) David Pierce, George Pierce, Joseph Pierce, Josiah Barnett. The suit was against all of the makers ; service was not effected on the first named, but process returned not found. It was served upon the other three, who failed to answer ; and judgment was taken against them, and the suit discontinued as to the first. This judgment seems to have been entered on the 21st of March, 1856. On the 7th of April, David Pierce and Josiah Barnett filed a motion to set aside the judgment, for the purpose of letting in a defence to the merits.

It is not necessary to state the grounds on which the affiants rested their application, nor to express any opinion, whether the matter stated in the affidavit would have been received in defence to the suit on the note, because we believe the reasons given why the defence was not made, insufficient. It is not shown that the parties upon whom service was made, and against whom judgment was taken, were not apprised of the defence in time to have set it up ; but they swear that they believed that judgment could not be taken in the case, until after service had been effected upon David Pierce ; that they were not aware that plaintiff could discontinue as to the one not served with process, and take judgment against the others. In cases where ignorance of the law can be received as an excuse, it must be clearly made out. To give it a free reception in our Courts would be productive of much difficulty, and would lead to much perjury, because the perjury could rarely be made out in support of an indictment.

We believe there is no error. The judgment is therefore affirmed without damages, as it is not clear that delay was the object in bringing the case into this Court.

Judgment affirmed.