Wallace v. Jerome

¶1delivered the opinion of the Court:

¶2This was an action of trover commenced by Jerome against Wallace. At the return term of the summons, (April term, 1838,) a default was entered for want of a plea, and at the next term a writ of Inquiry was executed, and judgment given for the plaintiff. On the day after the judgment was rendered, the defendant below filed an affidavit made by himself, and moved the Court that the judgment be opened, reversed, and set aside. This motion was overruled.

¶3The proceedings in the Court below are regular on their face; and the application to set aside the judgment below was addressed to the sound discretion of the Court. Where discretion exists, this Court has frequently decided, that error cannot be assigned.

¶4The overruling of the motion does not come within the statute passed 21st July, 1837,(1) authorizing exceptions to be taken to opinions and decisions of the Circuit Courts, overruling motions in arrest of judgment, for new trials, and for continuances of causes. It is consequently unnecessary to express an opinion whether the defendant produced sufficient grounds to authorize the Circuit Court to have set aside the judgment.

¶5The judgment below is affirmed with costs.

¶6Judgment affirmed.

¶7Note. See Ditch v. Edwards, Ante 127; Harmison v. Clark et al., Ante 131; Garner et al. v. Crenshaw, Ante 143.