One very patent reason for this distinction is, that by the granting of a new trial another opportunity is afforded for a full and fair investigation of the rights of the parties.
It appears, therefore, that Poorman recovered a judgment for the six parcels of land, without having any legal right, upon the showing made in this case, to any part of it. The fact that the judgment ought not to have been rendered in favor of Poorman, presents the strongest pos
A party is properly held responsible for the negligence of his agents and attorneys; and, in equity as well as in law, the negligence of a party, his agent or attorney, which alone produces an adverse result, will estop him from claiming relief as to such result. In this case it is insisted that proper diligence on the part of the defendants’ attorneys would have secured such a bill of exceptions as to have enabled the defendants in the law action by Poorman against them, to have obtained complete relief by their appeal. But the trial was in vacation, and the judge trying the cause was in ill health, and no legal necessity required the bill of exceptions to be prepared and signed on any particular day. Naturally, after the labor of the trial a little time would be desired by the judge before settling the exceptions.
The residence of plaintiff’s attorney being in another county, and the necessity for his presence in settling the exceptions, may well be a cause for further delay.
The continued ill health of the judge would naturally preclude that importunity which might otherwise have been manifested.
And while it is impossible to say that there was no negligence on the part of defendants’ attorneys, yet we are not prepared to hold, that, in view of all the facts, the failure to secure the bill of exceptions was alone attributable to their negligences. But, on the contrary, it seems
What we hold, in brief, is this: that, since the District Court has granted a new trial in the action for the recovery of real property, and it does not appear that the negligence of the unsuccessful party or their attorney produced the result, although they may not have been entirely without blame in that particular, the Supreme Court will not reverse such order as being an abuse of the discretion conferred on the District Court by section 3584 (2013), supra, of the Kevision.
, „ „ 5.-supreme meñtVví&t prejudice. When the case of Poorman against the Meeks, was pending in this court on appeal by the defendants, there was a motion made by the appellee to affirm » x ^Ie judgment, because of the failure of appellants to prosecute the same with diligence, etc., and, also, a motion was made by appellants, to dismiss their appeal. Both these motions were pending at the same time, and were supported and resistéd by affidavits of the respective parties and attorneys. Upon consideration of these motions together, the Supreme Court ordered the judgment affirmed without prejudice or effect in any way to the rights of the defendants, under the law, to a new trial in the court below. It is now insisted, that, by reason of the affirmance of the judgment in the Supreme Court, the defendants therein, are precluded from their right to a new trial in the District Court, notwithstanding the order was that it should be without prejudice, etc.
Since the two motions were addressed to the discretion of the Supreme Court, it was entirely competent for the court to sustain either motion with such modifications, in view of the merits of the other, as were deemed proper.
It remains only for us to remark, that there is no proof to sustain the allegation of fraud, made against the plaintiff in obtaining the order of the Supreme Court for the application of the proceeds of the mortgage foreclosure sale to the payment of the judgment in favor of Brown & Co.
Affirmed.