Turley v. Taylor
| Decision Date | 30 September 1873 |
| Citation | 65 Tenn. 394 |
| Parties | TURLEY v. TAYLOR. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM CARTER.
Appeal from the Chancery Court. H. C. SMITH, Chancellor.
J. MACKENBEIN and J. THOMAS JONES for complainant.
THOS. DONALDSON for defendant.
We have examined the petition for rehearing presented by counsel. We need not reply to it at length, but only notice a few propositions, as it presents nothing, as we think, additional to the argument in the original cause.
It is assumed in the argument that the court erred in not granting relief on the ground of surprise of Taylor, by “Turley's swearing positively to the statement that Carter county was in the Federal lines when the note sued on fell due.” If this had been true, and he had so sworn, it is doubtful whether it would have been a case of surprise in the sense in which a court of equity regards that term, as the basis of setting aside or enjoining the judgments of a court of competent jurisdiction, nothing else appearing. But be this as it may, the fact is, that Turley did not swear to any such statement positively, but only stated the fact to be so, according to his knowledge, derived from the history of the country, and from communicating with persons residing in that section, and, in the language of the record, not at all from any personal knowledge of his own. It was only from hearsay, and his opinions based on it.
This ground utterly fails for want of fact on which to rest it.
It is proper to add that the defendant was prepared with a witness, to suit himself, who swore the contrary in terms about as emphatic, deriving his knowledge from the history of the country, as Turley had.
On the question of what surprise is sufficient grounds for a new trial, the counsel cite the case of Morrow v. Hatfield, 6 Hum., 108. We need but say, that the case does not even bear remotely on the question involved in this. That was an action of detinue, in which, on appeal to this court, the court held that the Circuit Court should have granted a new trial, on the ground of the unexpected introduction of certain depositions. But the rule in such cases, and the one in granting a new trial in a court of chancery, after a trial at law, are so different that cases on the one question can furnish no guide whatever for action in the other. The case of Sharp v. Treece, 1 Heis., 447, is a similar case of trial at law and appeal to this court.
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