M. Hiller & Co. v. J. R. Cotton & Co.

48 Miss. 593 | Miss. | 1873

SlMRALL, J. :

A bill in chancery' was brought by M. Hiller & Co. against Joseph R. Colton & Co., to obtain a new trial in a suit at law. The equity of the bill is, that the demand- made by the defendants in their suit at law against the complainants was unfounded, and that complainants were prepared to make the proof of it on the trial, but that without fault or negligence on their part, they were unable to do so. The adjudications in this state have established the rigid and strict rule, that the complainant must have been diligent and active in the preparation of his defense, constant in readiness to meet the trial. If, therefore, he failed to make his defense, it must have been the result of accident or fraud, not superinduced by laches or neglect in his conduct. Courts will not intervene to relieve the slothful from the consequences of his folly, by taking from the vigilant the advantages he has gained. It must be clearly manifested to a court of equity that injustice has been done; that on another trial the wrong will be repaired; and, lastly, that the complainant was not at fault in pretermitting the opportunity to make his defense.

Judge Story, in his Equity Jurisprudence, 178-188, lays down two grounds of jurisdiction : First, that the complainant had a defense purely equitable, which could not be made in a court of law. Second, a defense, legal in character, which might have been made at law, but was prevented by accident or fraud, unmixed with any fault or negligence in the complainant or his agents. Where the court of law would take cognizance of the defense, then the special reasons must be shown why it was not made, the party himself being free of laches. Thomas v. Phillips, S. & M. 424; Gott v. Carr, 6 Gill & Johns. 312.

Courts of equity disclaim the power to examine and review judgments at law. The relief is administered by operating upon the person, compelling a submission to a new trial by a perpetual injunction of the judgment. The'interposition is because the court of law has lost control over its judgment, and can aiford no remedy to prevent irreparable mischief; chancery compels the sucessful party to submit to a new trial. A careful examination of the cases would serve no other purpose than to show how the general rule has been applied. The circumstances set up by the complainants, as accidents, which excuse them from fault and laches, are, that they were non-resident commission merchants at New Orleans, Louisiana; that they employed D. W. Hurst, Esq., as their attorney to manage the case for them, furnishing him with all the facts and information to enable him successfully to defend ; that for several terms their attorney was ready, but the case Avas not brought on for trial; but, that at the March term, 1872, after several continuances, the judgment was recovered ex parte, their attorney being absent, confined by severe illness, of which they had no knowledge.

Counsel for appellees urge, on the authority of Yeiger v. Burke, Watt & Co., 3 S. & M. 453, that there Avas a want of due diligence, because the complainants, or one of them, should have attended the trial. In the case cited, the party had the opportunity to. make the defense (usury) in a suit in-New Orleans, of which he did not avail; he could have done so in this state; besides, he had “ tAvo ” attorneys, only one being sick. After demurrer overruled to the declaration, the defendant failed to plead over. Moreover, his bill was not filed until pressed with execution on a forfeited forthcoming bond. After enumerating these facts, the court say: “ The party himself ought to have been present.” In Lee v. Pass, 14 S. & M. 160 (also cited), commenting on the circumstances, the court say: “ There seems to have been an abandonment of all necessary attention; no preparation was made for trial, no evidence procured.” In Robb v. Halsey, 11 S. & M. 147, the statement was so barren of merit that it was said “ to be doubtful whether it was sufficient to have continued the case.” After an examination of all the cases to which we have been referred, we find none of them holding that a non-resident litigant, ivho has constituted an attorney and pleaded to the suit, must himself be personally present at the trial, and if not, that circumstance alone is such laches as cuts him off from relief in equity, however meritorious his claim in all other respects may be. It would not be controverted, that if both the party and his attorney had been detained fiom the court by sickness, the excuse would be ample. We are of opinion that the complainants, engaged in commercial business in another state, and resident there, have used due and reasonable diligence when they employed counsel and put in his possession the facts and information necessary to their defense, which could be used by him on the trial in their absence. They, however, having selected an attorney, must abide the consequences of any lack of diligence or promptitude on his part. If the attorney is hindered from attending the trial by a supervening cause above his control, and for which he is not responsible, as a grievous sickness, then laches can not be imputed to the complainants. The illness of the attorney is an “ accident,” in the meaning of the law, which absolves the non-resident client from all blame, if he was not advised of it.

When we consider questions of diligence and negligence, we must refer for the rule to the conduct and practice of men of ordinary prudence in similar circumstances. The law ought to receive a reasonable application. It would be unreasonable to expect or require that the members of a commercial firm in New Orleans, with extensive and ramified business correspondence in the country, should give personal attention and presence in the various courts where they might have litigation. The courts might be so widely separated, and the terms so conflicting, that a personal presence would be impossible. Nor should the weightier matters of business at home be neglected, as might be if they were required to travel from town to town in order to give personal' supervision to their suits in courts.

Considered in connection with the other facts, the statement of the bill deserves weight — that Hurst was present several terms of the court ready for trial, but it was not brought on until three years after suit brought, and then in his absence, when it was known by the defendants that he was confined by sickness.

We think the allegations of the bill fully discharge the complainants from negligence and laches.

The averments as to the defense that could have been made, are not full, clear and positive. The merits are to be gathered by inferences, rather than direct statement. Enoügh is disclosed to indicate that the complainants have merits; the bill falls in the category of a good title defectively stated. The fair interpretation would be, that the complainants had not violated the instructions of the defendants in reference to the sale of the cotton, and, therefore, there should not have been a recovery. There should have been a distinct statement of the cause of action, and of the defense intended to be made, either that no instructions were given, or if given, they were conformed to, or that the complainants had made advances, or incurred liabilities for the defendants, which took away from them the right to control the sales, as the facts may be. It is easy enough to deduce from the averments, aided by the exhibits, what the defense was, and to discover that it might have been successful upon a fair and full investigation.

We think the demurrer might have been sustained for these defects in the bill, but the court ought to have given leave to amend, so as to have enabled the complainants to perfect the bill.

The decree sustaining the demurrer is affirmed, but the bill is ordered to be retained, and the cause remanded with leave to complainants to amend; if not amended, then to be dismissed.