Beckford & Holman v. Chipman

44 Ga. 543 | Ga. | 1871

McCay, Judge.

1. There must be some end to litigation; and this is true, not only that parties may not be detained in Court until they become exhausted by delay, but that the public may not be compelled to give to one set of parties that attention which all have equal claims upon. Admit all that is said in this application • admit that this evidence was wholly unexpected; that this plaintiff, in good faith, had no idea this testimony would be given, can he truly say he has not been negligent? Such an excuse as this would open the door to new trials, almost without number. A man has talked with a witness, who has told him a fact. He has confidence in the truthfulness of the witness, and does not have any idea this fact, so conclusive, so certain, as he thinks it is, will not be contested — -certainly will not be proven not to be a fact. And he fails to subpoena his witness, or to take his testimony. He goes to trial, finds himself mistaken, and loses his case. Is this diligence? We think not. It is the duty of a suitor to anticipate the positions and defenses of his adversary, and to be prepared to meet them. The law requires the pleadings to ratify the parties of the grounds upon which they proceed. And if evidence is offered, not covered by the pleadings, it may be objected to. Clearly, it was apparent here that the plaintiff might take the very ground complained of. If the defendant had the evidence to meet it, as he feels confident he has, it was his fault that he had not taken it. Besides, when this unexpected evidence came out, he could then have aslced the Court to continue on the showing he now presents. It would have been in the discretion of the Court to continue. But the defendant, nevertheless, went on, with this evidence staring him in the face. We suppose he felt safe before the jury. We take it for granted he was of opinion he would get a verdict in spjte of it. At any rate, he took his chances, and like many another, he was mistaken. The jury gave more weight to the testimony of the plaintiff, and less to that of the defendant, than was expected by the defendant.

2. We do not have it in our power to help him. The jury are the judges of the facts. There is a good deal of evidence in favor of this agency. We do not say it is conclusively proven, but there is enough of it to justify the verdict to save it from shocking injustice. It is not an illegal verdict. And upon such only can this Court reverse the Circuit Judge.

Judgment affirmed.