Shannon v. Reese , 38 Ala. 586 ( 1863 )

STONE, J.

We can not perceive, in this record, the slightest evidence that Mr. Reese perpetrated any fraud against the rights of Mr. Shannon. The conversation which he held with Mr. Shannon’s attorney, seems to have been at the attorney’s instance; and in that conversation, he seems to have given, fairly and honestly, the reasons which, as we can very readily suppose, influenced him in refusing to pay Mr. Shannon’s demand, until its justice should be established. It does not appear that Mr. Reese asserted any falsehood, or that he even suppressed any material fact of which he had knowledge. True, he did not inform the attorney of the legal presumption which was afterwards successfully invoked for him on the trial; but it does not appear that he knew of such legal principle, nor, indeed, that he had employed an attorney,, at the time he held the conversation. He did no more than urge objections to the account, which he probably believed were well taken.

On the other hand, the plaintiff, Shannon, knew that he executed the note to Reese; and before he entered upon the trial, he probably knew that note would be used in defense; for the plea of set-off was interposed.

The question made by the record is simply this: A defendant administrator is sued on a claim, which he declares to be unjust. On the trial, his counsel avails himself of a legal presumption, and thereby defeats the plaintiff’s recovery ; the plaintiff, if he had anticipated the use to be made of this known fact, having it in Ms power to procure and produce other evidence which would repel the legal presumption. He foregoes his right to take a voluntary nonsuit, but suffers a verdict and judgment to go against him ; and fails to move for a new trial on the ground of the surprise he complains of. These facts do not amount to an impeachment of the justice of the judgment, “on grounds of which the defendant could not have availed himself” [in the court of law,] “ or was prevented from doing so by fraud, or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” — French v. Garner, 7 Por. 553 ; Allman v. Owen, 31 Ala. 167 ; Moore v. Lesueur, 33 Ala. 243; Thomas v. Tappan, 1 Free. Ch. 472.

Decree affirmed.