33 Miss. 465 | Miss. | 1857
delivered the opinion of the court.
This action was brought by the plaintiff below, in the Circuit Court of Hinds county, to recover rents or mesne profits, for two lots in Jackson, which the plaintiff had recovered from the defendant, in a certain action of ejectment.
The jury having found a verdict for the plaintiff, the defendant moved for a new trial, on the ground, among others, of surprise. He states in his affidavit, that there was an understanding between him and the plaintiff, that they would meet at court and set the case for trial on a particular day. The case was regularly called on the docket, and this understanding, whatever it may have been, had not up to that moment been consummated; and it must be treated as one to be completed, before the regular call of the case on the docket, otherwise not to be binding, or to have the effect of continuing the case to another term. The defendant does not appear to have informed his counsel of this contemplated arrangement, or of the true grounds of his defence, as set forth in the affidavit.
The law requires diligence from suitors, and when a trial has been had, the question is not always whether justice has been done, but whether the party complaining, could by the exercise of proper diligence have produced a different result. Here there was no effort to make the defence set forth in the affidavit. No notice was given to the plaintiff of the set-off for improvements, as required by the statute.
Judgment affirmed.
