28 Miss. 383 | Miss. | 1854
delivered the opinion of the court.
The plaintiffs in error brought this action in the Claiborne circuit court, on a promissory note, against one Evans, principal, and the defendants in error, sureties.
Judgment by default was rendered against the principal, and the sureties defended on the ground that the plaintiffs had, by a binding contract, given further time of payment to the principal, which discharged them as sureties. At April term, 1849, a verdict was rendered for the plaintiffs, which upon motion of the defendants in error, was set aside, and a new trial granted on the affidavits of witnesses showing surprise; and to this, the plaintiffs in error took their bill of exceptions, setting out the evidence. Upon the new trial, a verdict and judgment were rendered for the defendants in error, to which no exception or objection was made, and none of the evidence introduced on that trial is presented in the record.
The ground of error complained of is, that the former verdict was set aside, and a new trial granted.
The evidence upon which the 'motion was granted is in substance, that the attorney for these defendants in the court below had been informed, by a witness who was privy to the contract for indulgence made between the plaintiffs and Evans, that that agreement was embodied in a written transfer held by the plaintiffs and executed by Evans, by which Evans assigned a note executed by third persons, as security for the note sued on, and as part of the written agreement; the plaintiffs bound themselves to give further time to Evans. Relying on this information, which was derived from such a source as to be entitled to full confidence, the attorney gave notice to the plaintiffs to produce the written transfer, and it was accordingly produced on the trial; when it was found that the written transfer did not contain the agreement for indulgence. It was then found that the agreement for indulgence was contained in! a separate writing, signed by the plaintiffs and in the possession of Evans; but it was too late to have it produced on the trial. It appears that, from the positive information given to the defendants’ attorney, and which was derived from a respectable attorney, who had drawn up the writings between the
We think this was a case of surprise that justified the court in granting the new trial.
The rule is well settled, that where a party or his counsel is taken by surprise, on a material point or circumstance, which could not.reasonably have been1 anticipated, and when want of skill, care, or attention cannot be justly imputed, and injustice has been done, a new trial should be granted. Graham on New Trials, 169; Jackson v. Warford, 7 Wend. 62; 1 Nott & M’ Cord, 33.
This would be the rule, even if the court had refused the motion for a new trial, and would probably in such case have entitled the defendants to a reversal. It applies with much more force to the present case, when the new trial was granted.
The granting a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to settled legal rules as well as the justice of the particular case. If a new trial be refused, a strong case must be shown to authorize the appellate court to say that it was error; and so, if it be granted, it must be manifest that it was improperly grafted. Indeed, it would seem that the latter would be entitled to the greater indulgence, inasmuch as it is not a final decision of the case, and the party against whom it is granted, still has an opportunity to assert his rights on the new trial.
But if, as in this case, the granting of the new trial is proved to have been just and proper by the result of the case upon the new trial, without objection by the party against whom the new trial was granted to the verdict on the second trial, it affords a strong reason that the new trial was properly granted, and that it was necessary for the purposes of justice.
The judgment is affirmed.
