40 Ala. 583 | Ala. | 1867
The petition for a new trial, when subjected to the test of the principles and rulings announced in the following cases, cannot be sustained; and the demurrer thereto should have been.— White v. Ryan & Martin, 31 Ala. 400; Shields v. Burns, 31 Ala. 535; Elliott v. Cook, 33 Ala. 490; Stewart v. Williams, 33 Ala. 492. If there was any accident, mistake, surprise, or fraud, which would authorize the granting a new trial, still the appellee does not show that he was toithout fault. If he made any mistake, it was one of law, and not of fact; and he states facts in the petition which should have put him on his guard, and made him diligent in making inquiry as to the pendency of the suit, and in preparing for its defense.
For the error pointed out, the judgment must be reversed, and the cause remanded for further proceedings.