52 Ala. 279 | Ala. | 1875
Prior to the Code, the term of the court was the limit within which the power of granting new trials could be exercised. 2 Brick. Dig. 276, § 3. The Code enlarges the power of the court in this respect, and authorizes a grant of rehearings in particular cases, on application properly made, after the close of the term at which final judgment was rendered. R. C. §§ 2812-28 ; Pratt & McKenzie v. Kiels & Sylvester, 28 Ala. 390 ; White v. Ryan & Martin, 31 Ala. 400.
The section of the Code under which this application is made provides, that if a party is prevented from making his defence by surprise, accident, mistake, or fraud, without fault on his part, he shall be entitled to a rehearing, on application made within four months from the-rendition of judgment. R. C. § 2814. It is observable, that the statute is framed in almost the identical language of the rule on which a court of equity proceeds in granting or refusing relief, against a judgment at law, because of defences available in a court of law. Hence, in construing the statute, and in determining the right to relief under it, the decisions of ‘ the court of chancery have been regarded as furnishing controlling analogies.
The application in this case was made within the prescribed time, after due notice to the appellee. It avers a full and complete defence to the suit in which the judgment was rendered,
The statute under which this application is made confers a right to a rehearing only on defendants who had a valid defence, which they were prevented from making, by surprise, accident, mistake, or fraud, without fault on their part. To authorize a rehearing, there must be a concurrence of a valid defence, — the failure to make it, must have resulted from sur
The application in this case discloses a valid defence. It further discloses that the absence of the petitioner, on whose evidence it was expected to make the defence, was an accident. That this absence was communicated to the court and its cause, so soon as it was known, and made the ground of an application for a continuance. That it was not earlier known, cannot be attributed to any fault of the petitioners, or their counsel. The petition does not, however, disclose that the petitioner was the only witness by whom the defence could be proved. The want or discovery of merely cumulative evidence is not, as a general rule, ground for a new trial. Otherwise, it has been said, “ not one verdict in ten would stand. Some corroborating evidence may always be found or made; and the trial by jury would become the most precarious of all trials.” Hilliard on New Trials, 380, § 13. It is perhaps a stricter rule in equity, that it will not relieve against a judgment at law, because of mere cumulative evidence to establish a legal defence. Hilliard on Injunctions, 182, § 56. The rule should be strictly applied to applications for a rehearing at law. If the application is because of the absence of cumulative evidence — evidence corroboratory, or in support of evidence offered to establish an attempted defence — the application should not be granted. Jury trials, and judgments are now lamentably precarious, without permitting this statute (intended only for extreme cases, and to substitute for a remedy existing before only in equity, an easier and more expeditious remedy at law) to be perverted into a mere instrument for procuring new trials, protracting litigation, and a temptation to fraud and perjury in the fabrication of evidence, to meet the necessities of a defence, once condemned by verdict and judgment.
The petition should have averred that the petitioners had no other evidence of the payment than the testimony of the petitioner, prevented by sickness from attendance. If there was no written evidence of the payment, and he was the only person, other than the plaintiff, to whom the fact of payment was known, a clear case for relief under the statute exists.
It is insisted by the counsel for appellee, that entertaining the petition will in effect be a revision and reversal of the action of the city court on the application for a continuance,' — a matter resting entirely within its discretion. The application for a continuance was properly made, to relieve the petitioners from the imputation of laches. If they had not made it, they
The judgment is reversed and the cause remanded.