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Dickenson, Administrator, v. Davis el at.

bereft of reason and incapable of managing their own estates, is of higher obligation, and an object more to be cherished by the courts, than is the protection of holders of commercial paper, however innocent they may be. McQlain v. Davis, supra; Moore v. Hershey, 90 Pa. St. 196; Wirebaeh v. First Nat'I Bank, 97 Pa. St. 543 (39 Am. R. 821); Van Patton v. Beats, 46 Iowa, 62; Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541; 1 Daniel Neg. Inst., sections 209, 210; Hull v. Louth, 109 Ind. 315; Buswell Insanity, sections 300, 301.

"There can be no contract unless there be a meeting of minds; and there can be no meeting of minds if the one party has no mind which can meet the mind of the other." 1 Parsons Notes and Bills, 149.

The fact that the maker of the note was of unsound mind at the time judgment was taken against him by default, presented such an excuse for his non-appearance as entitled his guardian to have the default set aside under the provisions of section 396. This was in effect determined by the decision given on the first appeal. Where an inequitable and unjust judgment has been taken against a party by default, it is the duty of the court to relieve him from the judgment, upon complaint or motion filed within two years, provided it be shown that he has a meritorious defence which, without inexcusable neglect on his part, he was prevented from making.

Courts have power to protect persons from the effect of judgments, who have not been served with process, or who without fault kave been deprived of an opportunity for a hearing. When it is admitted or established that a defendant was insane when process was served upon him, and judgment taken by default, these facts carry all the other necessary consequences with them. It follows that the judgment in such a case was taken by mistake and without the defendant's fault. Leach v. Marsh, 47 Maine, 548.

No doubt but that equity would furnish relief by an original bill after two years had expired. In such a case, it Dickereon, Administrator, v. Davis et ai.

might foe necessary, however, in order that relief should be afforded, that the injured party go further and show that the judgment plaintiff had been guilty of some fraud or unfairness in taking the judgment.

After a judgment has stood beyond the statutory period within which it may be reviewed, set aside, or opened up, relief can only be had by appealing to the equity or chancery jurisdiction of the court. We need not consider the principles applicable to such a case. Johnson v. Pomeroy, 31 Ohio St. 247; Stigers v. Brent, 50 Md. 214 (33 Am. R. 317; 10 Cent. L. J. 473); King v. Robinson, 33 Maine, 114.

Having arrived at the conclusion that, upon the facts found as they existed when the proceeding to set aside the judgment was originally commenced, the defendant therein was clearly entitled to be relieved, it remains to be considered whether the court properly denied relief on account of what lias occurred since.

Did the holder of the judgment by his proceeding to set aside the transfer of real estate from Garrett McClain to his wife, and the judgment therein obtained, and by selling the defendant's real estate, and by that means inducing the guardian to redeem from the sale, thereby bring about such a condition of affairs, pending the proceedings to set aside the default, as now precludes the court from affording relief from the judgment? Upon well settled principles this inquiry must be answered in the negative. What has happened since the rendition of the judgment which defeats a clear statutory right to relief? It is claimed that there has been an adjudication of the validity of the judgment, and that there has been a voluntary payment of the debt. It is found that, pending the proceeding to set aside the default, the appellee instituted a proceeding in aid of an execution, issued upon the judgment, to subject certain real estate to sale in order to satisfy the judgment now in question. To this proceeding the guardian answered that his ward was a person of unsound mind at the time the judgment was renDick ergon, Administrator, v. Davis ei al.

dered, that there was a meritorious defence to the action on the note, and that a proceeding was then pending to set aside the judgment which the plaintiff was then seeking to enforce. Over this answer the court gave judgment that the conveyance should be set aside, and that the ward's land be subjected to sale. The answer filed by the guardian was in the nature of a dilatory plea. It was in effect an appeal to the court to stay proceedings until the pending application to set aside the default should be determined. While the judgment, in aid of the enforcement of which the proceeding to subject the ward's land was being prosecuted, remained in force, it was not competent in a collateral proceeding to draw its validity in question by an answer that there was a meritorious defence to the original action, and that the judgment had been taken by mistake or through the excusable neglect of the defendant. The judgment of the court setting aside the conveyance aud subjecting the land did not, and could not, involve the merits of the pending application to set aside the default. Proctor v. Cole, 104 Ind. 373; Boggs v. Clark, 37 Cal. 236; Freeman Judg., section 321.

Perhaps the court should have stayed the proceeding to set aside the conveyance until the pending case had been determined. Its judgment, however, in the collateral proceeding did not estop the guardian from carrying on the pending proceeding to obtain relief under the statute.

The right to obtain relief from a judgment under section 396 can not be defeated by the plaintiff instituting proceedings, in aid of an execution, to enforce the judgment from which the defendant had already asked to be relieved, and for which purpose appropriate proceedings were then pending.

Where a party's hands have been tied by a judgment wrongfully obtained against him, he can not be prevented from obtaining relief by other complications which the holder of the judgment may have forced upon him, without his consent, during his struggle to free himself from the original wrong. One who proceeds with the enforcement of a judgDickerson, Administrator, v. Davis et al.

ment so obtained, with knowledge that proceedings have been instituted by or on behalf of the defendant to be relieved therefrom, takes the chance that, if the judgment is reversed or set aside, he will be compelled to restore his adversary to the situation he was in before the erroneous judgment was rendered—that is to say, whatever has been coerced from the defendant in the way of enforcing a judgment while proceedings to set it aside are pending, must be restored in the event the judgment should finally be for the defendant. A party will not be permitted to hold on to an advantage obtained by means of an inequitable and wrongful judgment after the judgment has been set aside or reversed. Maghee v. Collins, 27 Ind. 83; Argenti v. City of San Francisco, 30 Cal. 458; Raun v. Reynolds, 18 Cal. 275; Freeman Judgments, section 481.

The fact that the guardian redeemed his ward's land from the execution sale presents no obstacle against the right of the administrator to have the default set aside. Every step which the appellee took was taken with knowledge that the judgment which he was enforcing was being challenged as wrongful. He is not in a position to say that the redemption by the guardian of the ward's property, which had been sold to satisfy a judgment which ought never to have been rendered, was a voluntary payment. What could the guardian do after the sale except to redeem, or take the chance that the Supreme Court might hold that his ward was without remedy? He had instituted proceedings to set the judgment aside. When the appellee instituted his proceedings in aid of the execution, he had, without success, appealed to the court to delay until the motion to set aside the default could be determined. Over all, the appellee proceeded to sell his ward's homestead.

We can not understand how it can be maintained that, because the guardian did that which every prudent man would have done under like circumstances, it is now to be said the Brown v. The State.

payment was voluntary, and a bar to obtaining relief from the judgment.

Upon the facts found our conclusion is, that the judgment by default against Garrett McClain should be set aside, so far as to allow the administrator of his estate to present whatever defence there may be to the note sued on, an d that the money paid to redeem be brought into the Boone Circuit Court to await the final order and determination of the pending suit.

Judgment reversed, with costs, with direction to the court

below to restate its conclusions of law according to this

opinion, and for further proceedings.

Filed May 24, 1887; petition to modify mandate overruled Sept. 21, 1887.

1111 44!

115 503

111 441,

150 392|

No. 13,873.

Brown V. The State.

Criminal Law.Instructions.Record.Bill of Exceptions.Supreme Court. —Instructions which are copied into the transcript by the clerk, but not brought into the record by a bill of exceptions or by a special order of the court, will not be considered on appeal.

Same.Manslaughter.Assault and Battery with Intent to Commit.Verdict
Failure to Specify whether Voluntary or Involuntary.—In a prosecution for
assault and battery with intent to commit manslaughter, the verdict is
not vitiated, or the substantial rights of the defendant prejudiced, by a
failure to specify therein whether the intent was to commit voluntary
or involuntary manslaughter.

From the Switzerland Circuit Court.
J. A. Works and L. 0. Schroeder, for appellant.
L. T. Michener, Attorney General, M. R. Sulzer, Prosecut-
ing Attorney, and /. H. Gillett, for the State.

Elliott, J.—The appellant was convicted of assault and

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