Carey v. King

Citation5 Ga. 75
Decision Date31 July 1848
Docket NumberNo. 13.,13.
PartiesEdward Carey, Assignee of the Bank of Columbus,plaintiff in error vs. King and Hooper, defendants in error.
CourtSupreme Court of Georgia

Motion to reinstate in Muscogee Superior Court. Decided by Judge Alexander, May Term, 1848.

The facts are embodied in the decision.

Jones, Benning & Jones, Holt and William Dougherty, for plaintiff in error.

Insisted that if any artifice or trick be practiced to prevent the attendance of witnesses, a new trial ought to be granted. Graham on New Trials, 54. And the authorities there cited, and cases referred to, and cited; 11 Mod. 141. Bull, Nisi Prius, 328. 1 Burr. 570. 1 Mod. 156.

Also, that all disingenuous attempts to stifle or suppress evidence, or to thwart the proceedings, or to obtain an unconscionable advantage, or to mislead the Court or jury, will be defeated by setting aside the verdict. Graham New Tri. 56, and authorities there cited and cases referred to. 1 Burr. 352. 9 Price, 76. 7 Wend. 62.

The plaintiff's counsel also insist that motions to reinstate are in the nature of motions to continue, &c.

Colquitt & Wellborn, for defendants in error.

Submitted that no error was committed in this. 1st. That no subpoena was served, or attempted to be served, upon the witness, Barnard, whose testimony is represented in the bill of exceptions to have been important to he plaintiff in error on the trial when the nonsuit was awarded. The plaintiff was guilty of gross negligence, in not having taken the proper legal steps to coerce the attendance of witness, and. therefore, is precluded from complaint. vigilantibus non dormienlibus leges subceniunt. Prince's Dig. 424. Graham on New Trials, 174, 175, 175, 177. Stroup vs. Sullivan and Black, 2 Kel. Rep. 275. The plaintiff cannot be permitted to pass the line of his own laches in the premises, to try the case upon the supposed misconduct of the opposite party. As well might one attempt to be entertained in a Court of Equity, having unclean hands in the matter of his complaint. It does not appear that witness had been, prior to the trial, so much as solicited to attend and give testimony. No promise had been asked or given—no trick or deceit practised upon the plaintiff in error, to beguile or mislead him in respect of the preparation of his cause, by either defendants in error or witness. The witness being wholly unaffected by any precept of the Court or authority of law, did but exercise his discretion in conforming his conduct to the preferences of the one party, rather than the other.

But least of all, can the plaintiff be beard on the ground of surprise. According to his own showing, it does not seem that Barnard's evidence was ever looked to by him before the trial. He chose rather to rely upon the notarial certificate. To make the plaintiff's case the more unfounded, his cause was set down for trial on a named day, and thus a better opportunity to prepare his proofs was afforded him. Courts of Law do not aspire to enforce any duties of a merely moral nature. Supposing, however, the witness to have been satisfied that the right of the cause was with defendants in error, and that an improper use was about to be made of his testimony, the defendants in error having lost, by casualty, the means of defence, it may be well doubted whether any rule of ethics was broken. Who shall decide the point of conscience?

Let a practical test be applied to the alleged rights of the plaintiff to a new trial. Had he moved a continuation of his cause. When the nonsuit was awarded, with a view to procure the evidence of Barnard, most certainly he would have failed. Could he have obtained it, however, he would, by reason of his declension to move it, aside from other causes, have disentitled himself to the rule to set aside the nonsuit. Most clearly he could not have moved an attachment, or other penal process against the witness, prior to service, or attempt at service, of subpoena. The plaintiff, then, has sustained no legal damage. Sheftall vs. Clay, R. M. Charlton's Rep. 7. Gist vs. Mason, 1 Tenn. 84.

2. It does not appear, by the affidavit of the witness, Barnard, that if he had been examined he would have given the desired testimony. This is a fatal objection to the plaintiff\'s motion.

Defendants further contend there is no error, because the rule was discharged by operation of law, and for want of certainty. 1 Todd's Practice, 499. 1 Kelly, Nisbet vs. Laivson. 3 do. Bethune vs. Bonner.

The reason may be wrong, but the decision is right 2 Peter's Digest, 135.

By the CourtNisbet, J. delivering the opinion.

An action was brought In the Superior Court of Muscogee county, by Edward Carey, assignee of the Bank of Columbus, against King & Hooper, indorsers upon a bill of exchange. The cause being ripe for trial, was set down for a hearing on a particular day, and in consequence of the absence of E. Barnard, the notary public, who made demand, and gave notice to the indorsers, the plaintiff was unable to make out his case, and submitted to a nonsuit. A rule nisi was then taken by the plaintiff, calling upon the defendants to show cause why the nonsuit should not be set aside, and a new trial granted, upon the following grounds:

1st. Because the plaintiff's counsel was surprised on the trial of the cause, by the absence of E. Barnard, who was the only person by whom notice of nonpayment, necessary to charge the defendants, as indorsers, could be proven, and who is a merchant residing in the city of Coulmbus, and a notary public, and generally to be found at his office, or counting room, and seldom absent therefrom in business hours, and that plaintiff went to the store of witness for him before the case was submitted to the jury.

2d. Because the absence of said E. Barnard was procured at the instance and request of the defendants, or by some one acting in their behalf, to prevent the plaintiff from having the benefit of the testimony of said Barnard, on the trial of said cause.

The rule for a new trial was supported by the affidavits of the plaintiff, Mr. Barnard, the witness, and Mr. Lee. Mr. Barnard states in substance, that being about to leave the city of Columbus in the spring of 1847, one of the defendants stated to him, that the plaintiff might want his testimony in the case, which was then pending, and expressed a hope that his business might notpermit him to return to Columbus until the adjournment of the Court; that whilst he was absent in the city of New Orleans, he received a letter from one of the defendants, very much to the same purport; that after his return to Columbus, he had a conversation shortly before the case was expected to be tried, with one of the defendants, the object of which seemed to be to procure his absence from the trial, and to prevent plaintiff from having the benefit of his testimony on the trial; and among other things, by way of inducement to him to yield to his solicitations, the defendant stated to him, that the debt was an old and large one, sufficient to ruin him if he had it to pay; and that the debt, or a greater part thereof, had been paid; but owing to some cause, (perhaps the death of Mr. A. B. Davis,) he was unable to prove it; and requested him to absent himself from town on the trial, which he agreed to do if he was not subpoenaed; that on the morning of the day upon which he was informed by the defendant, the cause was to be tried, Henry King, one of the defendants, came to him and renewed his request that he should leave the town to prevent the plaintiff from procuring his testimony on the trial, which was about to take place; which he, not being subpoenaed, agreed to do, and did ride out into the country, and remained until about half past 11 o\'clock, when he returned to his dwelling house, and was there but a short time when the plaintiff called for him to go to the Court House to testify in the case.

Mr. Lee states, that on the day of the trial, and a short time before the nonsuit was awarded in the case, he met with Richard Hooper, (one of the defendants,) who seemed much elated at the result of the case, and told him that E. Barnard was not out of town, as was supposed, but that he had him in some back room, taking refreshments with him.

Mr. Carey, the plaintiff, states In substance as follows: That Barnard was the notary of the Bank of Columbus; that he demanded and protested the bill, and gave the notice to the defendants; that he was the only person by whom he could prove these facts, that he resided, and kept his office, about 600 yards from the court house, that he was in the habit of attending the Court, when desired to do so. either with or without a subpoena, to prove his official acts as notary; that as soon as he was informed, during the trial, that his testimony was needed, he went to his store for himfirst, and was informed by his clerk that he had gone out of town; he then went to the livery stable, where he had been informed Barnard had got a horse, and there also he learned that he had gone out of town. He then returned to the Court-House, and informed his counsel that be could not find Barnard, and was directed again to go in search of him; he then went out again to the livery-stable, where he was informed he had returned—then to his store—then to his residence—where he found him, and asked him to go immediately to the Court-House, which he promised to do, but the case had been non-suited before they got to the Court-House.

The defendants filed their answer to the rule, and after hearing argument, the Court refused a new trial upon both the grounds taken in the rule. And it is to this decision that Mr. Carey, the plaintiff in error, excepts.

We think the Court was right on the first ground taken in the rule, to wit, surprise. There certainly was no surprise here. There can be no surprise, by reason of the absence a material witness, when there has been no diligence used to procure his attendance. He was not subpoenaed—had...

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8 cases
  • Loomis v. Edwards
    • United States
    • Georgia Court of Appeals
    • October 12, 1949
    ...in no event be decisive of the motion insofar as it is based on such alleged newly discovered evidence. Our attention is called to Carey v. King, 5 Ga. 75; Perry v. Hammock, supra; Central of Georgia Railway Company v. Harden, 113 Ga. 453, 38 S.E. 949. There is nothing in those decisions un......
  • Loomis v. Edwards
    • United States
    • Georgia Court of Appeals
    • October 12, 1949
    ...in no event be decisive of the motion insofar as it is based on such alleged newly discovered evidence. Our attention is called to Carey v. King, 5 Ga. 75; Perry v. Hammock, Central of Georgia Railway Company v. Harden, 113 Ga. 453, 38 S.E. 949. There is nothing in those decisions under the......
  • State v. Wieners
    • United States
    • Missouri Supreme Court
    • October 31, 1877
    ...Hilliard on New Trial, (2 Ed.) 521, 544; Todd v. State, 25 Ind. 213; Phillips v. State, 29 Ga. 105; Peers v. Davis, 29 Mo. 184; Carey v. King, 5 Ga. 75; Com. v. Benesh, Thatch. Crim. Cas. 687. 4. The statement of the circuit attorney in his argument to the jury that defendant admitted the m......
  • State v. Price
    • United States
    • West Virginia Supreme Court
    • February 2, 1926
    ...89 A.D. 470, 85 N.Y.S. 801; Haynes v. State ex rel., etc., 45 Ind. 425; Bradley v. Lumber Co., 81 N.W. 394, 105 Wis. 245; Carey v. King & Hooper, 5 Ga. 75; Coghill & Co. v. Marks al., 29 Cal. 673; Webster v. Smith, 47 A. 101, 72 Vt. 12; Arthur v. Mitchell, 10 Smedes & M. (18 Miss.) 326; 29 ......
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