The opinion of the court was delivered by
The plaintiff in her complaint alleges: 1. That on December 4th, 1872, she made a contract with Adrian and Vollers, for the purchase-of a certain tract of land, on which she paid one third cash and secured the balance by her two notes, whereupon said Adrian and Vollers gave her a bond for titles. 2. That on March 28th, 1876, “ the said notes having been fully paid, the said Adrian and Vollers did execute to plaintiff titles for the said tract, in accordance with the terms of said bond, at which time the notes were past due.” 3. That said notes were not then delivered up to plaintiff, the same having been placed in the custody of one Bagsdale for safe keeping. 4. That said Bagsdale subsequently informed plaintiff that the notes were subject to her order. 6. That plaintiff neglected to obtain said notes from Bagsdale, “ supposing they were sufficiently cancelled.” 6. That at some time (when is not stated), an action was brought against plain
To this complaint the defendants separately demurred, on the ground that it does not state facts sufficient to constitute a cause of action, which demurrers were sustained, and the plaintiff appeals.
First as to the demurrer filed by the defendant Hewitt. The appellant contends that this is an action seeking equitable re
There is an allegation that the action of the attorney was unauthorized, “ and operated as a fraud” upon the plaintiff herein, who was the defendant in the former action. But even if this could be construed as an allegation of fraud, as against the attorney, there is certainly nothing in it by which to connect the plaintiff in that action with such fraud. It is not even alleged that such plaintiff was aware, at the time he toot his judgment, that the attorney was acting without authority in withdrawing the defence. On the contrary, he doubtless supposed, as he had a right to do, that the attorney was acting by authority, inasmuch as it is the constant practice for an attorney to withdraw a defence, without question from the opposite party or from the court as to his authority so to do.
Again it will be observed, that facts sufficient to show that the plaintiff herein had a valid defence to the action in which the judgment in question was recovered, are not stated in the complaint. It is true that the plaintiff alleges “ that her defence could have been successfully made,” but that is a mere statement of a legal opinion, and she does not even allege that
Be that as it may, however, the mere fact that the attorney of a defendant has, without any special authority from his client, withdrawn the answer, and suffered judgment by default to go against the defendant, without some allegation of fraudulent collusion between the attorney and the plaintiff in the action, furnishes no ground for the exercise of the equitable jurisdiction of the court in setting aside the judgment. The code (§ 197) affords ample remedy for the relief of a party “ from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect,” or, what is the same thing, the mistake, inadvertence, surprise or excusable neglect of his counsel; and if a party fails to avail himself of the remedy thus provided within the time prescribed, he cannot afterwards invoke the aid of the equity powers of the court unless he can show some recognized ground of equitable jurisdiction: and this, we think, the plaintiff has altogether failed to do in this case. The demurrer filed by the defendant Hewitt was therefore properly sustained.
As to the defendant Dargan, it is very manifest that the plaintiff has stated no cause of action whatever against him. Bor in addition to what has been said, the plaintiff, if she ever had any cause of action against him, could not have any now, inasmuch as she had conveyed to another all her right, title and interest in the land prior to the sale under which the defendant Dargan claims, and which alone connects him with the case. He manifestly stands as a purchaser for valuable
The judgment of this court is, that the judgment of the Circuit Court be affirmed.