109 Ga. 832 | Ga. | 1900
Roberts and Kirkpatrick brought an action of ejectment against Donaldson, to recover possession of a certain tract of land in DeKalb county, Georgia. After evidence for both sides had been submitted, the trial judge directed the j ury to return a verdict for the plaintiffs. Donaldson moved for a new trial. By agreement the motion was submitted to the judge without argument. The judge held up his decision for more than ten months, when, in open court and in term, he overruled the motion. Counsel for the movant was not present, and did not learn of the decision until too late to bring the case by bill of exceptions to this court. He thereupon filed what he calls a “bill of review,” asking that the judgment overruling the motion for new trial be set aside and that a new trial of the ejectment suit be granted. This petition was mainly predicated upon what is alleged to have been the understanding between the judge and the counsel for the petitioner. It was alleged that the judge, at the time the motion was submitted, agreed that when he decided the motion he would notify counsel for the movant in time for a bill of exceptions to be sued out in case of an adverse decision; that he held up his decision a long time; and that when the decision was made he failed to notify counsel, and thus by the action of the judge the movant lost his right to bring th e case to th is court. The petition also alleged that there was error apparent on the face of the record of the ejectment suit, the error consisting in the direction of the verdict for the plaintiffs under the facts disclosed. The petition was demurred to on the following grounds: “1. That the
The pleader in his petition styles it a “bill of review,” but we think that it is not such a bill. A technical bill of review or a bill in the nature of a bill of review, according to our understanding, lies only to review a decree of a court of equity, not a judgment at law. The present bill is really a petition to set aside a judgment overruling a motion for a new trial, and to obtain a new trial. Such petitions are not favored by courts of equity. The law has provided ample remedies to the parties, by giving them the right to move for a new trial in the court below, and by giving them the right to a writ of error to this court. Where the losing party fails to avail himself of his proper legal remedies, courts of equity will be slow to grant him relief, unless he shows that he has exercised all diligence, or that from some unavoidable cause he could not pursue his legal remedies. If his petition shows that there has been any default or neglect on his part or on the part of his counsel, equity will not aid him. Stroup v. Sullivan, 2 Kelly, 275; Robuck v. Harkins, 38 Ga. 174; Civil Code, §§ 3987, 3988. Applying this rule to the facts set out in the present petition, we find that the petitioner did not exercise full diligence in the assertion of his rights at law. He relied altogether upon an understanding with the trial judge that, the latter would inform petitioner when the decision was made on the motion for a new trial. We think that such an understanding did not relieve the petitioner or his counsel of the duty of ascertaining the progress of the case and when the judge was likely to decide it. Counsel should not have relied entirely upon such a promise by the judge. He should have recognized the fact that a judge has more cases than one, and that this particular judge had many cases and was a very busy man. He ought also to have recognized the fact that the judge might in good faith forget the promise, as was doubtless the case in this instance, if the
Judgment affirmed.