77 Mo. 26 | Mo. | 1882
I.
Did the circuit court err in granting, the garnishee’s motion for a new trial ?
Our statute authorizes the verdict to be set aside, and. the granting of a new trial, “ where there has been a mistake or surprise, of a party, his agent or attorney,” etc-R. S. 1879, § 3704.
Surprise in the sense here used, is nearly allied to accident, which isa prominent subject for equitable. relief. 3 Grah. & Wat. on New Tr., 874. Of accident Mr. Justice Story says: “ By this term is intended not merely inevitable casualty or the act of Providence, or what is technically termed vis major, or irresistible force, but such unforeseen events, misfortunes, losses, acts or omissions, as-are not the result of any negligence or misconduct in the party.” 1 Story Eq. Jur., § 78. In the People v. Superior Court, 5 Wend. 114, where an application was made for a mandamus to vacate a rule granting a new trial, a peremptory writ was awarded on the ground that the trial court had improperly granted the new trial, basing its action on the ground of newly discovered evidence, the supreme court holding that the mover for a new trial was; guilty of gross negligence in not discovering prior to the first trial, that the witness was a material witness, and that
In Peers v. Paris, 29 Mo. 184, this court, per Ewing, J., approvingly citing 3 Grah. & Wat. on New Tr., 398, said: “ Surprise, in its legal acceptation, denotes an un
The text book just cited states that “if the surprise-was owing to the least want of diligence, the applicant will be without sufficient excuse, and his motion will be denied. It is a condition precedent to his attaining relief,, that he shall be wholly free from blame. To grant a new trial upon any other terms, would be holding out a premium to inefficiency and remissness, and would inevitably lead to great abuses. The cases universally support this wholesome doctrine.”
Proceeding upon this theory of the law, this court in O’Conner v. Duff, 80 Mo. 595, held that the motion fora new trial was properly overruled, where the defendants alleged surprise by the testimony of their witness, but it did not appear they had sought any information from him before he was sworn, or made any effort to ascertain what his testimony would be. In another case in this court a similar ruling was made; a defendant claimed that his co-defendant had executed by mistake, one of the two notes sued on ; that he was never advised of the mistake; could not discover it by any possible diligence, and never discovered it till after the trial had ended. And the co-defendant corroborated this by affidavit alleging that he was totally ignorant of his being sued on two notes till he was called on the witness stand. Commenting on these facts "Wagner, J., observed: “Where a person receives notice of a trial, he is at once put on inquiry. The period of notice is always sufficiently ahead of the sitting of the court, to afford parties full opportunity to ascertain the precise situation of their cause and what testimony they
II.
And in regard to mistake of a party as the ground Tor a new trial, it seems from the authorities, as well as from sound reason, that while negligence cannot be claimed as surprise, neither can incredible forgetfulness, unpardonable heedlessness or egregious blunder be classed as mistake; honest mistake which properly invokes judicial interposition. We search this record in vain for the elements of either surprise or mistake in their legal acceptation.
III.
LafFoon was garnished, and answered on the 19th day of July, 1878, stating in substance, that on the 1st day of Eebruary, next preceding, he had executed two notes to Daniel Hibler, one for $500, due and paid in May of that year; the second note, for $600, being due May 1st, 1879, and unpaid, and that he could not say who the owner of the note was. On the 23rd day of July, 1879, judgment was rendered on the admissions of the answer alone of the .garnishee. On the next day, July 24th, a motion was filed by the garnishee to set aside the judgment and grant a new trial as follows:
“ Comes now Drury LafFoon, garnishee in the above entitled cause, and moves the court to set aside the judgment rendered against him in the above entitled cause and :grant a new trial for the following reasons : 1st, Because the verdict and judgment are against the evidence, and the weight of the evidence. 2nd, That the verdict and*31 judgment are against the law and the evidence. 3rd, That •upon the answer of said garnishee to interrogatories propounded to him., said plaintiff was not entitled to the judgment rendered against said garnishee, and said answer was not denied by said plaintiff'. 4th, That in the answer of said garnishee filed herein on the 19th day of July, 1878, occurs a mistake in the name of the payee of the notes therein mentioned and attempted to be described; that said garnishee did not in fact execute two notes to said Daniel Hibler as therein stated, nor did he at any time execute any note whatever to said Daniel Hibler; that said garnishee on the 19th day of July, 1878, did execute and deliver to Samuel Hibler two promissory notes; one for $500, due the 1st day of March, 1878; the other for the sum of $600, payable on or before the 1st day of May, 1879; that the same were given for the purchase money of real estate, and both secured by deed of trust on real estate, dated the 19th day of Eebruary, 1878, and recorded at page 397, in book 22 in the office of the recorder of deeds in and for Cass county, but that said garnishee never at any time executed to said Daniel Hibler a promissory note or promissory notes as stated in said answer; that said answer was made under the impression and belief on the part of said garnishee that said promissory notes herein described (and in said answer attempted to be described), had been executed to said Daniel Hibler, that said answer is incorrect in stating the name of the payee in the notes, and was made under mistake as to the name of payee therein; that said notes 'were made payable to Samuel Hibler and not Daniel Hibler, and that both said notes are fully paid off and discharged, and that said garnishee did not discover said mistake in said answer until the 23rd day of July, 1879, and after the rendition of said judgment, wherefore he prays that the same may be set aside.” This motion was duly verified.
It will be observed that when the garnishee filed his answer, he had already paid the first note, and presumably
IY.
A party who by mistake of his attorney pleads a plea which does not cover his defense, or correctly present his case, cannot, after judgment against him on his own admissions, set the verdict aside, and obtain leave to amend.
Y.
But the setting aside of the verdict and the granting' of a new trial was erroneous for additional reasons : The answer of the garnishee was a sufficient admission of indebtedness to Daniel Hibler to authorize the judgment which was rendered. Nothing to the contrary appearing, we shall presume that the notes given by the garnishee were non-negotiable notes, and that the ownership of the notes remained as stated in the answer, and this in accord with a familiar principle. If the garnishee had been desirous of having determined whether the second note had been assigned to a third person, he should, availing himself of the provisions of section 2541, have disclosed in his answer and declared his belief that the note had been assigned to a third person, naming him, when proper steps could have been taken as provided by that section. But this he did not do, and his loose allusions to the ownership of the note did not comply with statutory requirements.
Therefore, judgment reversed and cause remanded with directions'to proceed as herein indicated.