delivered the opinion of the Court.
Interest reiqniblieae nt sit finis Utium, might be replied to the pathetic appeal of appellee in which he asks if he must be imprisoned because by the judgment of a court he has been found guilty of doing that of which, he says it is by the pleadings in this cause admitted, he was innocent.
Matters in controversy can not be litigated over and over, although, after judgment, the defeated party is willing, with specification and detail, to make oath that the judgment rendered is unjust and opposed to the truth. Every person is by natural right entitled to one hearing; if being duly summoned, he willfully neglects to heed the same and suffers judgment to go against him, he is not entitled to another trial.
The bill in this case sets forth that the complainant was duly summoned in an action on the case; that he retained an attorney to defend the same; that the appearance of the attorney was entered and that thereafter he paid no attention to the cause, suffering judgment to be entered without notifying his client and without resistance.
The complainant therefore asks that a court of chancery give him a new trial. If the able and industrious counsel who represent him in this litigation shall fail to reply to an answer that may be filed and shall also fail to notify him or fail to be themselves present at the hearing of this cause, will the complainant be entitled to maintain another bill after this cause shall have been heard and dismissed on bill and answer?
It is the settled rule in this State that negligence of the attorney is negligence of the client. Clark v. Ewing, 93 Ill. 572-578; Yates v. Monroe et al., 13 Ill. 219; Kern v. Strausberger, 71 Ill. 413; Trentler v. Halligan, 86 Ill. 39; High on Injunctions, Secs. 166; 210, 221; Graham & Waterman on New Trials, Vol. 3, 1520.
If, through the negligence of the attorney employed by the complainant, an unjust judgment has been obtained against him, he has a remedy by an action against such counsel.
The allegation of the bill is that James J. Hoch was retained; this is a conclusion. What was done by which he was retained ? From the bill it appears that Hoch claims that he did not understand that he had been retained in the cause in which the judgment complained of was rendered, and did not know that his appearance had ever been entered therein.
The bill fails to negative negligence upon the part of the complainant in failing to retain an attorney, or in an attorney in failing to attend to a suit he was employed to defend.
If the allegations of the bill are true, complainant had a complete defense to the suit, it being an action on the case, based upon an alleged fraud.
Appellee asks: “ Is it right that he should go to jail for an offense of which he is guiltless ?” It is not, but how is the question of his alleged guilt to be determined ? Certainly, after some judgment, such question must be at rest.
Appellee was duly summoned; he had an opportunity to be heard.
If a new trial before a jury should be given him and the attorney next employed should fail to defend, would he be entitled to another trial 1
Courts of equity do not grant new trials upon the mere ground that a defendant has failed or omitted to make a defense at law, even although the judgment may appear to be wrong in law or opposed to the facts. Hinrichsen v. Van Winkle, 27 Ill. 334; Holmes v. Stateler, 57 Ill. 209.
It must appear that the judgment was the result of fraud, accident or mistake without the fault or negligence of the party against whom it is, or the court will not interfere. Hinrichsen v. Van Winkle, supra; Marine Ins. Co. v. Hodgson, 7 Cranch 332.
Appellee urges that he only asks to have restrained an execution of the ca. sa.
If the plaintiff was entitled to the judgment he obtained, he is entitled to such writ. Whether he ought to have such judgment was the question submitted to the court in that case. However, the relief the complainant asks may be stated, in effect, that new trials be granted him, and that meanwhile the operation of the judgments be stayed.
Appellee has obtained an injunction restraining the execution of the writs issued upon the judgments, without giving any bond, either for the payment of the judgments, or that he will surrender himself in case the judgments shall be affirmed; nor does he in his bill offer to either pay or surrender himself, or to pay the expense which the appellants have been or may be put to in obtaining their judgments, in case the result of new trials should be the same as of those already had.
There are statutes in some States under which, where, through the negligence of an attorney in failing to appear, judgment has been obtained, the same has been set aside in a new proceeding. In Hew York a party may be relieved from a judgment obtained against him by reason of the negligence of his attorney, he being free from fault. Sharp v. Mayor of New York, 31 Barb. 578; Wash v. Wetmore, 33 Barb. 159; McKinley v. Tuttle, 34 Cal. 235; Beatty v. O’Connor, 106 Ind. 81; see, also, Thompson v. Goulding et al., 5 Allen 81-82; Crawford v. Williams, 1 Swan. (Tenn.) 341; Paneri v. Boswell, 12 Heisk. 323.
The general rule is otherwise. Stephenson v. Wilson, 2 Vernon, 325; Ware v. Horwood, 14 Vesey, 29-31; Drewry v. Barnes, 3 Russ. 94.
. Mutual mistake is one of the sources of the jurisdiction of a court of equity. Mr. Hoch was retained by appellee, yet by mistake thought he was not; the mistake was not mutual as between the parties to this cause.
If the bill of appellee set forth facts showing that he had employed Mr. Hoch to attend to these cases; that he mistakenly supposed himself not to be so employed, showing how such mistake occurred; and that appellee rested under the belief that Mr. Hoch was retained and would properly defend the suits; and if the bill further specifically offered to do equity, the writer of this opinion is inclined to think that, upon proper terms, relief might be afforded.
The order granting the injunction is reversed.