
    Hunter v. Elliott.
    Discretion.—Abose or.—An application to be relieved from a judgment, Under section 99 of the code, is addressed to the discretion of tbe court, and unless it appears tliat tbe court below bas abused that discretion, tbe Supreme Court will not interfere.
    APPEAL from the Warren Common Pleas.
   Elliot, J.

This was an application by the appellant, filed at the June term of the court, 1866, under the latter clause of section 99 of the code, to set aside a judgment rendered at the February term preceding, against him, and in favor of Elliott, the appellee. '

The judgment was rendered on a promissory note, executed by Samuel P. Hunter, the appellant, to Samuel H. Hunter, on the 12th of June, 1857, for $162 50, payable on the 25th of the following December. The appellant appeared to the action on the note, and pleaded payment thereof.

This application was in the form of a written motion, stating the reasons for setting aside the judgment. It was also supported by the affidavit of the appellant, in which the grounds of the motion are fully stated. It alleges, in substance, that the note was fully paid while in the hands of Samuel H. Hunter, the payee, and before its transfer to Elliott; that the payment was made through Charles H. Hunter, the appellant’s brother; that said Charles H. was indebted to the appellant in the sum of $1,000, and agreed with him to pay said note to Samuel H, and that the amount so paid should be credited by the appellant on the indebtedness of said Charles H. to him; that said Charles H. did pay said note to Samuel H., while he was the owner thereof, and took up the same from the said Samuel H.; that Charles H. afterwards reported the fact of such payment to the appellant, who, thereupon, credited the amount on the indebtedness of Charles II. to him. All of which he could prove by said Charles II. That he did not make any effort to procure Ms evidence on the trial of said cause at the February term, for the reason that at the time the recent rebellion broke out, said Charles H. was living in the State of Louisiana; that he soon afterwards enlisted in the Union army, “and was in many dangerous engagements with the enemy;” that for eighteen months prior to the trial of said cause, the appellant, and the other brothers and sisters of said Charles FL., had been unable to have any communication with him, during all of which time the letters sent by the family to said Charles FL. were returned to them from the dead letter office, and they all concluded and. believed that he was dead; that the appellant knew no better until after the trial of said cause, when letters were received from him, but not in time to enable him to procure his affidavit to be fileff with said application; that he knew of no other witness by whom he could prove the facts; that said Charles FL. is residing in Mill Creek parish, .in the State of Louisiana. ' The affidavit was treated in the court below as a complaint, and to it, and also to the motion, the court sustained a demurrer, refused to set aside the judgment, and rendered a judgment against the appellant for costs.

The statute authorizes the court, in its “ discretion,” at any time within one year, to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect, and to supply an omission in any proceeding. "When the discretionary power of the court has been exercised, there must be á clear case of the abuse of that discretion to justify the interference of this court. 2 Ind. 354; 4 id. 200; 5 id. 94; 12 id. 91. We do not think this case presents such an abuse.

It is stated in the affidavit, that the note was paid for the appellant and taken up by Charles FI. .Hunter, the witness by whom he says he can prove the fact, but he fails to explain how the note afterwards got out of the possession of said Charles II. and into the possession of Elliott, the plaintiff in the suit. If the note was paid hj-Charles H. to Samuel H. Hunter, the payee, the latter must know that fact. Neither his absence or death is alleged in the affidavit. Was any effort made to prove the payment by him on the trial? It does not appear by the appellant’s showing that he could have any inducement, or interest, in concealing the truth.

J. H. Brown and Gr. L. Wagner, for appellant.

J. Bark and S. T. Miller, for appellee.

Actual hostilities terminated nearly a year before the rendition of the judgment, and during that time, at least, there had been a free communication between the people of this State and those of Louisiana. Were any letters written during that period, or other efforts used to ascertain the fate of Charles JET. Hunter, the witness ? The obscurity of these matters may have suggested themselves to the mind of the judge below, and had some weight or influence in directing his discretion.

The judgment is affirmed, with costs.  