45 Miss. 608 | Miss. | 1871
Were the plaintiffs in error entitled to a new trial upon the matters disclosed in the affidavits ? The.rule, as recognized in Thompson v. Williams, 7 Smedes & Marsh. 275, is that the showing made must discover merits, and the surprise must be such as care and prudence could not provide against. The defendant, notified by the service of the summons, of the pendency of the suit, is bound, at his peril, to appear and make his defense. If he fail to do so, and judgment go against him, he must, in his application for relief, satisfy the court that neither laches or negligence are imputable to him, but that his absence from the trial and want of preparation were referable to some accident, or providential hindrance, beyond his control. It might be conceded that Haber offered a sufficient reason why he did not attend at the trial. But that does not suffice. If his presence, and that of his absent witnesses, would not have produced a different result, why should the plaintiffs be deprived of the advantage of the verdict and judgment ? The onus is upon Haber to make out a “defense” to the suit, which, by accident and surprise, he was deprived of the opportunity of presenting on the trial. We think the affidavits come short of this. The supplies for the partnership farm were furnished to Lane on his individual credit, and were so charged on Haber’s books. Lane offered to give an
Let the judgment he affirmed.