VILLAGE OF CELINA v. EASTPORT SAVINGS BANK, 68 F. 401

SEVERENS, District Judge, having stated the facts as above stated, delivered the opinion of the court. The proceedings in this case appear to have taken on much of the form and character of Code practice and pleading, at one time having the characteristics of a proceeding in a court of law, and at another that of a proceeding in a court of equity.

The court appears to have treated the petition as a bill in equity, and in the subsequent proceedings, except in the settlement of a bill of exceptions, seems to have acted in the case upon the theory of its being a bill in equity to set aside a judgment upon the ground of a mistake. As the proceedings finally ended in a decree dismissing •what is therein called “the bill,” and as no objection has been taken in this court to the peculiar procedure in the case, we have considered the subject upon its merits.

The ground upon which the village of Celina seeks relief from the judgment which it has suffered to pass by default, is that it failed to take the necessary steps to contest the bank’s right of recovery upon the cause of action sued on, in consequence of a mistake or misapprehension of the mayor of the village in supposing that he had employed attorneys to look after the case and interpose the proper defense.

A court of chancery has jurisdiction upon a bill filed for the purpose of setting aside a judgment and furnishing an opportunity for another trial where the judgment has been suffered by a clear mistake into w’hich the party against whom the judgment was rendered has fallen without any fault on his part. But in such case “a litigant is required to have exercised the greatest degree of watchfulness over the progress of his suit in court.” 1 Black Judgm. § 387; Truly v. Wanzer, 5 How. 142; Crim v. Handley, 94 U. S. 652; 3 Pom. Eq. Jur. § 134, and note; 2 Story, Eq. Jur. § 887. In Insurance Co. v.

Hodgson, 7 Cranch, 336, it was said by Chief Justice Marshall that it is a condition to the relief that the party was prevented from interposing his defense by fraud or unavoidable accident unmixed with any fault or negligence in himself or his agents. The court in which the judgment was rendered, for such a reason, also has power, until the case has passed beyond its control by the lapse of the term, to vacate the judgment and award a new trial upon motion. Here the defendant by its inattention had lost this remedy, for the power of the court which rendered the judgment to grant the relief was gone. Muller v.

Ehlers, 91 U. S. 249; Bronson v. Schulten, 104 U. S. 410; Phillips v. Negley, 117 U. S. 665, 6 Sup. Ct. 901. But there is a difference in the circumstances which would be held sufficient to justify the court which renders the judgment in awarding a new trial while the case is still subject to its control and those upon which the court would, in another suit, interpose by injunction to restrain the plaintiff in an action at law from prosecuting it and remitting him to a new trial; much clearer and stronger proof of freedom from fault or negligence being required in the latter than in the former case.

In the present case we do not think the petition itself sets forth facts sufficient to justify the court, in this independent proceeding, in enjoining the prosecution of the judgment. Taking the statements in the petition to be true, they amount to no more than this: that the mayor of the village asked the attorneys whom he visited if they could attend to the suit, and they replied that they could. This was a very equivocal sort of retainer, and a careless mode of doing business.

It appears that the village never gave any further attention to the case, never knew whether an answer was filed or not, and, as is to be gathered from the petition, never made any subsequent inquiry about the case. Time went on from the 27th day of June, 1890, to the 1st of September, 1891, without any inquiry being made about the case, and then only was the village informed of what had become of it by a letter from the attorney for tbe bank, asking for a satisfaction of tbe judgment.

Meantime, as appears, tbe Tillage proceeded to collect from its taxpayers tbe money to pay tbe coupons for wbicb tbe judgment was rendered. In these circumstances, while we do not say that tbe showing would not be sufficient to sustain a motion for a new tidal, if that bad been seasonably made in tbe court wbicb rendered the judgment, we do not think tbe case is brought within tbe requirements of tbe rule upon which a court of equity acts in decreeing to be Toid a judgment recovered in a court of law.

We do not think that the allegation in tbe petition that tbe petitioner “could not with reasonable diligence have discovered tbe fact,” is supported by the facts there alleged. For these reasons we think the decree of the court below should be affirmed, and it is so ordered.