83 Va. 674 | Va. | 1887
delivered the opinion of the court.
It appears by the record in this case that in April, 1878„
On the twelfth day of April, 1884, Smith appeared in court and filed his affidavit, in which he stated, in substance, that he had started for Amherst court-house on the morning of the tenth of April, 1884, the first day of the term, on the Richmond and Alleghany railroad, to connect at Lynchburg with a train running to Amherst court-house. That the train on the Richmond and Alleghany railroad failed to connect at Lynchburg, the early freight train having just left, and that he then took the next train, which started at 10:30 o’clock A. M., but that this last named train was delayed on the route, and that when he reached Amherst court-house the trial was over. That he had never made the statements testified to by Dameron. That he had purchased the property in the deed of loan specified, and had paid for it with his own money. That he had never been repaid for this outlay; had never been secured therefor by a deed of trust on land j had never released the deed of loan; and that he would so testify if put upon the stand. And he moved the court upon the grounds stated in the affidavit to set aside the verdict of the jury, and grant him a new trial. But the court overruled this motion, and entered an order directing the plaintiff in error to deliver the property in question to the sheriff of Amherst county, and pay to Dameron his costs. But in so doing, we think, the circuit court of Amherst erred. The affidavit of Smith was not only such as to advise the court of the materiality of his testimony, but it ought to have convinced the court that without that testimony no fair trial of the case could be had. The written evidence adduced by the counsel for Smith, standing alone, showed a clear title to the property in Smith-This evidence must be overthrown or evaded. To do this, Dameron had testified that Smith had told him, a short
But it is argued that if all this be so, yet that the failure of Smith to be present at court when the case was called for trial was such negligence as ought to preclude a reversal of the judgment. We cannot, however, concur in this suggestion. The failure of Smith to attend at the trial cannot fairly be imputed to negligence on his part. He started for court in time to have reached there before the case was tried, we may safely assume from the failure of the record to disprove it, if the trains on the Eichmond and Alleghany railroad had not failed to connect at Lynch-burg with the trains running to Amherst court-house. He then took the next train for that place, and, but for its being delayed on the route, it seems probable that he would have reached court before the trial had ended. In
The judgment must be reversed, and the case must be remanded to the circuit court of Amherst county for a new trial to be had therein.
Judgment eeveesed.