26 Vt. 430 | Vt. | 1854
The opinion of the court was delivered by
This is .a bill in chancery, to obtain a new trial in a case, finally determined in this court upon exceptions, the judgment having been entered up for nominal damages, on account of an omission to prove a demand, made upon this orator, and by consent of the counsel, in this court. It is not alleged in the bill, nor is there any pretence, of any fraud or influence of the defendant in the matter. The bill is based altogether upon the misapprehension of the counsel as to the facts, or the proof existing of the fact, in which the case was then defective, and the sickness of the orator, and his consequent absence from
The early English cases which have been brought to our notice, and which we have before had occasion to examine, and some of the American cases, and especially the case of Colyer v. Langford, 1 A. K. Marshall R. 237, seem to go upon the ground that a bill will be entertained for a new.trial, in an action determined at law, upon very much the same grounds that new trials are granted at law, where the courts of law have no means of granting a new trial, in the case, either for defect of powers, or from lapse of time. But the numerous cases in this state upon the subject, from that of Essex v. Berry 2 Vt. 161, down to that of Warner v. Conant, 24 Vt. 351, have established the rule here upon a very much narrower basis. The rule of the best considered and more recent cases upon this subject is, that the party must have failed in obtaining redress in the suit at law, by thejjfraud of the opposite party, or inevitable accident or mistake, without any default either of the party or his counsel. That is the rule laid down in the cases above cited, and in the intervening cases, among which we may name Emerson v. Udall, 13 Vt. 477, and Pettes v. Bank of Whitehall, 17 id. 435. The latter case, in principle, and in some of its facts and circumstances, has a considerable analogy to the present. The rule in Connecticut, Carrington v. Hollabaird, 17 Conn. 530, S. C. 19 id. 84, is laid down in almost the same terms in which itthas been established here; stress being laid upon the fact that the plaintiff’s failure to obtain justice at law, has been “ without fault on his part.” And by this we understand not wilful fault, but such want of care and diligence, and prudence, as is requisite in the ordinary business of life.
Now in applying these principles to the present case, it must be apparent at once, that the real basis of the hill, is to be found in
So far as the first ground is concerned, it is merely an application tobe relieved, in equity, from the effect of the statute of limitations, which precludes redress at law. In this respect this case very closely resembles that of Fletcher v. Warren, 18 Vt. 45, in principle, certainly. For although that case does not .profess to seek redress, upon that ground chiefly, it is obvious that no other real necessity for a resort to a court of equity, is readily discovered in the cáse. It is scarcely needful to say, that no such general ground of relief, in courts of equity, exists. And although the case of Colyer v. Langford alleges, in the note read to us, something of, this kind in regard to new trials, it will probably be found when the case is- examined, that nothing more is decided, than that to afford relief, in such case, it must appear that he is now without redress in the courts of law, and that the party has failed of a trial at law, through fraud in the opposite party, accident, or mistake, without his own fault, and that the remedy there lapsed also, without his fault. I am not aware of this fact ever forming any substantive ground of relief in equity, although by some casual omission of a negative, through the absurd blunder of some one, I am made to say so, in so many words, in Hall v. Hall, 8 Vt. 162. But the decision is the exact contrary to all purposes, and in all points.
There remains then, only the entry ¡of judgment in this court for nominal damages. ' This was done by no action of the court, by no solicitation of the opposite party, but against their will, very likely, and by the express consent of the counsel for plaintiff, as is alleged in the bill. The court could not have entered up such a judgment, without the consent of the party or his counsel. The reasons which induced the counsel to consent to such a judgment, as alleged, are that the plaintiff’s agent assured them, that “ no such demand was made, and none such could be proved, and took upon himself .to decide and determine it, tobe safe to permit judgment to be entered for nominal damages, and judgment was so entered.”
Now all this is consistent with the fact, that although it might have been known, that such a demand was made, the knowledge
I. That neither fraud, accident or mistake, such as can form the basis of relief in a court of equity, is alleged in the bill.
II. It does appear, that whatever embarrassment the plaintiff is in, comes from the mistake, and misjudgment of Ids counsel, or agent, which is to all practical purposes the same, as if it had been that of the party himself.
III. That it is not by any means certain, that a new trial will alter the result, although it may be perhaps regarded, as probable.
V. The plaintiff has suffered a long delay, after he should have made his counsel aware of the proof, if any existed, so that they could have applied to this court, at its next term, to correct the entry of judgment, and send the case back to the county court, which might possibly have been obtained at that time, and which is really what the party now requires, but which it is too late to grant in any court, if indeed it could ever have been done with safety.
Decree of chancellor affirmed.