Hoskins v. Hight

• Decision Date: 07 June 1892
• Citation: 95 Ala. 284,11 So. 253
• Parties: HOSKINS v. HIGHT.
• Court: Alabama Supreme Court

11 So. 253

95 Ala. 284

HOSKINS v. HIGHT.

Supreme Court of Alabama

June 7, 1892

Appeal from city court of Anniston; B. F. CASSADY, Judge.

Action by B. S. Hoskins against F. M. Hight on a promissory note. Judgment for plaintiff. From an order granting a new trial plaintiff appeals. Reversed.

Blackwell & Keith, for appellant.

Caldwell & Johnston, for appellee.

STONE C.J.

This appeal is taken from the ruling of the lower court in granting to defendant a new trial. Demurrers being sustained to several grounds of the motion for a new trial, only the second ground of said motion remained, and it was upon this ground the court granted the new trial. The defendant was therefore granted a new trial, because "he was prevented from making his defense thereto by accident or mistake, and without fault on his part." The only evidence contained in the record is that introduced on the motion for a new trial; and this evidence consisted of affidavits of the defendant, his counsel, and of a clerk in the latter's office. The defendant's affidavit sets out the facts that constituted his defense to the suit. His attorney's affidavit averred that upon the defendant stating to his firm the matter of his defense, and giving him the names of the witnesses by whom this defense was to be proved, the "affiant's recollection is that before the trial of said cause he instructed W. P. Acher, a young man in the employ of said firm, to have the clerk of the city court [the court in which the cause was pending] issue subp nas for said witnesses to be present at the trial, and affiant's first information that they were not subp naed was when the case was called for trial." The affidavit of W. P. Acher was that he had no recollection as to any instructions to have the clerk of the city court subp na the desired witnesses, "and that he took no steps to have such subp nas issued." The only proceedings had in the trial of the case, that are shown by the record, are the filing of the summons and complaint, the filing of a plea by defendant through his counsel setting out this defense to the suit, and the rendering of judgment by the court. This judgment, as set out in the record, is as follows: "Came the parties by attorneys, and plaintiff withdraws his replication to defendant's plea; and this cause being submitted to the court, after proof shown, it is considered by the court that the plaintiff recover of the defendant," etc. We have taken the trouble to set the facts out in detail, in order that our ruling may be the more clearly understood. The appeal is taken under authority of the act "to allow appeals to the supreme court from decisions of the city and circuit courts in this state granting or refusing to grant motions for new trials," approved February 16, 1891, (Acts 1890-91, p. 779.) Our authority for reviewing the ruling of the lower court in this case, by which he granted a new trial, is given in the last clause of the said act in the following language: "And the supreme court shall have the power to grant new trials, or to correct any errors of the circuit or city court in granting or refusing the same." The power to set aside verdicts and grant new trials is inherent in courts of common-law jurisdiction, and in the exercise of this power the court is called upon to use its equitable discretion to prevent a palpable and material wrong. As said by CLOPTON, J., in Cobb v. Malone, 92 Ala. 630, 9 South. Rep. 738: "The power is essential to prevent irreparable injustice in cases where a verdict, wholly wrong, is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice on part of juries, which sometimes occurs." When, in the exercise of this inherent power, the trial court grants a new trial, the presumption is that it has rightfully used its discretion; but if the contrary appears, and it is plainly shown that the trial court has abused its power, this discretion, being judicial in its character, should be revised on appeal. Edsall v. Ayres, 15 Ind. 286; Lloyd v. McClure, 2 G. Greene, 139; Finley v. David, 7 Iowa, 3. The grounds upon which a new trial may be granted are as varied as the circumstances of each individual case. In the exercise of a sound discretion, the court must consider the particular surroundings, and have special regard to the equitable demands of each separate case. But text writers and different courts recognize many different grounds for the granting of new trials. Surprise and mistake are placed in this category; and there are many instances where new trials have been granted because one party to a suit has been taken by surprise, or has been prejudiced on account of a mistake or inadvertence for which he was not responsible, and which was not occasioned in any way by his negligence. No doubt it was intended that the ground upon which the new trial in this case was asked and granted should receive its force and efficacy from this division of the causes that justify such equitable interposition by the court. We shall so consider it; for the ground, as stated in the motion, is that the defendant "was prevented from making his defense thereto by accident or mistake, and without fault on his part."

In order to obtain a new trial on the ground of mistake and surprise, there are certain requirements which must be fulfilled as conditions precedent to the exercise by the trial court of this discretion. It must be shown that the surprise or mistake occurred in reference to some matter material to the issue involved; that injury resulted therefrom; and that the party asking for a new trial has not been guilty of negligence or fault in the premises. Beadle v. Graham, 66 Ala. 102; Brooks v Douglass, 32 Cal. 208; Jackson v. Warford, 7 Wend. 62; Haber v. Lane, 45 Miss. 608; Walker v. Kretsinger, 48 Ill. 502; Fretwell v. Laffoon, 77 Mo. 26; 16 Amer. & Eng. Enc. Law, p. 532. The first duty of a party surprised at the trial, or upon the discovery of a mistake that will prejudice his interest, is to take proper legal steps to continue or delay the cause; for "he cannot neglect this in the hope of securing a verdict in spite of the surprise, (or mistake,) and then obtain a new...