A. B. Porter & S. Brazelton, appellants, vs. M. Moffatt, appellee

A. B. Porter & S. Brazelton, appellants, vs. M. Moffatt, appellee. This court will not inquire into the correctness of the proceeding of the District Court in entering default in vacation. Where there is a bill in equity praying for a new trial at law, showing equitable grounds, and injunction to stay proceedings in the former action, the dissolution of the injunction will not.be cause for dismissing the bill. This was a bill in equity brought in the District Court for a new trial at law. The bill stated that Moffatt had brought his action of covenant in the court of law against the complainants in the-bill, who are the appellants in this court, and that the complainants not attending court and having no attorney present, the said Moffatt caused their default to be entered, in vacation, on the clerk’s docket, and recovered judgment thereon at the subsequent term. A writ of injunction was prayed and granted. The amendment put in to said bill states that the reason complainants did not attend court was, that a compromise was pending, and it was understood and agreed that said suit should be withdrawn. There was a motion to dismiss the bill for want of equity. The motion was sustained and the bill dismissed. Whereupon the complainants appeal. Hall for-appellants. A default was taken contrary to the rules of court, and j udgment entered thereon. It is laid down in MaddockJs Ch. that courts of equity will not, ex officio, take notice of the rules of courts of law, it is true; but here the court of equity and the court of law is the same. Bell et al. vs. Cunningham et al. 1 Sumner’s R. 89,- 2 Peters. 516, Mar. Ins. Co. of Alex. vs. Hodgden; Ohio JR.. 1, 427/ same case, Cranch 7, 336/ Ware vs. Horwood, 14 Vesey, 30/ Johns. Ch. R. 6, 235. July, 1841 Courts of equity will relieve where a defence might be made at law, when the party was prevented from making it by fraud, from accident, without negligence, &c. Teas for appellee. There is no equity in this bill. We are not bound to plead, but may move to dismiss. Iowa Stat. p. 140. The regularity or irregularity of a judgment at law could not be inquired into in a court of equity. If the party had any defence, it was a legal one; and if they fail to make it, they cannot come into a court of equity and ask a new trial. The case in Sumner’s R. does not apply. There is no instance in which a court of equity has set aside a judgment of a court of law for irregularity, and granted a new trial. 3 Johns. Ch. R. 279; Maddock’s Ch. 77; Eden on Injunctions, 9; 1 Johns. Ch. R. 49; lb. 320; lb. 432; lb. 465; 18 Johns. R. 533; 17 Johns. R. 436; 1 Johns. Ca. 436; 4 Johns. R. 510; 76.535; Chan. Act sec. 71; 2 Johns. Ch. R. 231; 76.551; 3 Johns. Ch. R. 280. [MAJORITY — BY TfiB COURT.] BY TfiB COURT. We see nothing in the original petition which should, have prevented it from being dismissed. The District Court was clearly within the limits of its authority in ruling the defendant to plead by a day in vacation, and in entering up judgment at the subsequent term for want of such plea. Whether the default was properly entered in vacation, we cannot inquire. The District Courts can make their own rules on that subject, and what those rules are we cannot know farther than they are set forth in the record before us. But the amended petition sets forth some ground for the interposition of a court of equity. It states that prior to the day on which the defendants were ruled to plead, there was a compromise pending between the defendant in this action and one of the complainants, and that it was understood and agreed that the suit should be withdrawn. This is alleged as the reason not only for not pleading in time, but also for not appearing at the next term of the court. If this be the true state of the faets, their negligence was excusable, and they would be entitled to relief. It is true that the amended petition was not sworn to, and on that account a motion to dissolve the injunction would have been properly sustained. But after such dissolution the complainants would have been entitled to have proceeded with their suit, and to have obtained relief, if they had shown themselves en-, titled to it at the final hearing. The dismission of the petition improperly deprived them ofthis right. The order of the court below dismissing the petition will therefore be reversed, and the oause remanded to the District Court of Hemy county-.