Hanserd v. Gray, 46 Miss. 75

Hanserd v. Gray

46 Miss. 75 | Miss. | 1871

SlMEALL, J.:

The only point arising on the agreed record is, whether *79tbe chancery court erred in permitting Gray, the defendant, to amend his answer. It is necessary to the ends of justice that the disputes and differences which are referred to the courts for settlement should be presented on their merits. It is, therefore, enjoined by the Code, and allowed in the practice of the courts,.that amendments should be made on the most liberal terms; not, however, so as to encourage delay, laches or negligence. The subject rests in the sound discretion of the court, and is not the subject ordinarily of review. 4 Smedes & Marsh. 300. In Holmes v. McGinty et ux., recently decided, we held that, after a case had been heard finally on its merits, and appeal taken to this court, which remanded the cause to the chancery court, directing what decree should be rendered, it was improper to allow the defendant to file an amended answer and cross-bill setting up new matter well known at the time the original answer was put in. This would encourage negligence and laches to an inadmissible degree. Such applicant must show accident, surprise or newly discovered facts, or new and unimpeachable evidence of them, which before were unknown or could not, with ease, have been found out. That case turned on its peculiar circumstances. In Wailes v. Johnson, 25 Miss. 422, it is said that, after the case has been remanded from the high court of errors and appeals, the chancellor has still power to allow amendments. After the case has been finally heard, and the decision of the chancellor tested on appeal, it should require such showing in order to let in amendments as relieves the party from the imputation of laches, and as convinces the conscience and judgment of the chancellor that it is necessary in order that justice may be done. Hoes Gray bring himself within this rule? The litigation arose out of the will of David Bridgeford, late of Giles county, Tennessee. It was transferred to this court, and is reported in 39 Miss. 140, where it was held, that Gray could not protect himself against the claim of the complainants, unless he could show that there had been an execution of the decree of the chancery court *80of Giles county, Tennessee, by an actual partition of the property.

Gray states in his affidavit that he married in this state, and had no personal knowledge of the-suit or what had been decided in it, in the Tennessee court, and, in order to prepare his original answer, he sent an able attorney to Giles county, Tennessee, in order to procure a transcript of the papers in the suit there. That, in consequence of a fire, the papers were scattered and in confusion, and only a partial transcript could be procured; that, after the decision by the high court of errors and appeals, he made a second effort to procure a full record from Tennessee, and then for the first time learned that a decision had been made under the decree. His amended answer embodies this new matter, and was tendered at the first term of the court after the receipt of the mandate of the appellate court. It is manifest that great injustice would be done the defendant if he were cut off from this defense. He shows, also, diligence in gathering up the facts that constitute his defense. If full copy of the proceedings in Tennessee could have been obtained, when he first applied (as might have been but for the casualty of the fire) he would have been guilty of negligence in not procuring it. His second application put him in possession of a fact not before known ¿ssential to his defense, and, at the first moment after learning it, he brought it to the notice of the court and opposing counsel. This is very distinguishable from the case of Holmes v. McGinty. We think that the chancellor did right in allowing the amendment.

Decree affirmed.