The plaintiff in this case made a motion to vacate his judgment. This was proper enough; the judgment was one not authorized by the pleadings and evidence, and the defendant might have made the same motion. But in addition to this the plaintiff moved for a judgment nuno pro tuno, in accordance with the pleadings and evidence. No notice was given of this motion, and perhaps none was necessary; the defendant was in default, and the judgment asked for was the proper judgment for the plaintiff to have taken at first. But the defendant’s attorney, at this stage, brings to the notice of the court a new fact, supported by the sworn affidavit of the defendant, made for another purpose, to-wit: as an affidavit of illegality to the execution. That fact is, that the defendant has a good defense to the plaintiff’s claim, and that this defense has only lately come to her knowledge. The plaintiff seeks to amend his proceedings. It is not simply a casé where he asks the court to correct the misprision of the clerk — to make the minutes speak the truth of what actually transpired. The judgment, as it is, is the very judgment the plaintiff took;. the mistake was a mistake of his own, and the leave he asks-is to correct his own mistake. Why should he not be put upon terms — why should the court permit a judgment to betaken with the fact made apparent that the defendant may,, by motion for a new trial, set it aside? Assuming what is stated in the affidavit to be true, the defendant would have an unquestionable right to move for a new trial. He presents a case coming clearly within the provisions of that section of the Code allowing motions for new trial to be made in certain cases after the term.
*458As the plaintiff, in the condition of his case, was compelled, in effect, to take a new judgment, we think not only the. public convenience but justice to the defendant required the plaintiff to be put upon terms, to-wit: to take his judgment if the defendant failed in the plea. The only question of doubt is, whether the defendant showed proper diligence in not being there ready to put in the plea. But it must be remembered that there was no notice given of this motion. The illegality had been dismissed, and she had a right to suppose that she would be driven to her bill in equity. So that she cannot fairly be said to be in laches.
Judgment reversed.