Cox v. Mobile & Girard Railroad , 44 Ala. 611 ( 1870 )

PETERS, J.

This is an application in chancery, in the nature of a motion-for a new trial at law. The bill was dismissed upon demurrer for want of equity. In such a case the allegations of the bill are in lieu of the facts stated in the affidavits in support of a motion for a new trial. On a motion to dismiss for want of equity, the allegations of the bill must be taken as absdlutely true, unless they contradict each other, or are so made as to impair their own force. A new trial is granted for the sake of obtaining justice. — 2 Tidd Pr. 905, marg. A new trial will be granted in equity in case of newly discovered evidence, for fraud, surprise or the like, where the party has been deprived of the means of defense by circumstances beyond his control. — 3 Gra. & Wat. on New Trials, p. 1455; Doubleday v. Makeplace, 4 Blackf. 9; Floyd v. Jayne, 6 John Ch. 479; 2 Story Eq. 173; Carrington v. Holabard, 17 Conn. 539.

Here the newly discovered proof shows that there was a contract between the creditor and the debtor without the consent of the surety, to extend the time of the payment of the note, and that the debtor had actually paid to the creditor one hundred and ten dollars in money on this contract, and that the time of the payment of the note was extended until the first of January, 1855. This note was due in 1851. This payment was made in extra interest. At the time it was made the creditor declared that he did not look to Cox, the security, for the payment of the note, but to the debtor, the principal maker of the note, alone for payment. This agreement undoubtedly discharged the surety to the note. — Cox v. Mobile & Girard Railroad Company, 37 Ala. 320. The demurrer to the bill admits these facts to be true. — Mitf. Ch., p. 107, 108. Then the complainant, Cox, the appellant in this suit, was legally discharged from all liability on the note upon which he was sued at the time of the trial at law. Under such circumstances it would be unjust to make him pay the note. This injustice must be committed if the judgment against Mm is permitted to stand. This would be unconscientious and inequitable, unless there are other principles of equity which intervene to justify this inequity.

It is a principle of equity jurisprudence, that if a party litigant has a sufficient defense at law, that it must be exerted there with proper' diligence, else a court of chancery will not interpose to give relief; for this would be to relieve his negligence and not his misfortune.

Here the bill shows that the testimony set out in the affidavit of Warsden, which clearly establishes the above, facts, was wholly unknown to the appellant Cox at the time of the trial at law, and no ordinary diligence could have discovered it; because it was not known by Cox to exist, nor did he have any reason to suspect its existence! It was newly discovered testimony of such a character as would have justified a new trial at law, had it been discovered in time to have made it the basis of an application in the court at law.

Warsden’s affidavit is a part of the bill. The demurrer admits the facts stated in the bill. This admits the facts in the affidavit. If these facts are true, then it is also true that Cox was discharged from all liability on the note at the date of the trial. .But his defense failed, because he was not able to prove it at the time of the trial. This does not make the affidavit merely cumulative evidence. Such evidence merely strengthens other evidence of a like kind. This may leave the question of discharge still in doubt, and as this doubt has been once submitted to a jury, and they have resolved it against the appellant, the same doubt will not be again submitted in a different forum for a second resolution, under more favorable circumstances than it was heard at first. This would be giving a court of equity the power to review the verdict of a jury, which is not permitted. — Simpson v. Hart, 1 John. Ch. 91. The jury say by this verdict that there was no discharge proven before them. Hence it did not exist, so far as their inquiry extended. Here it is admitted that the discharge did exist at the time of the trial at law, but the proof that established it was not then known to the appellant, and no ordinary diligence could then have discovered this proof, but that it has been since discovered, and as soon as it ■was discovered, this bill was filed. This takes this case without the rule that a new trial will not be granted on merely cumulative evidence. — Dougald's Admr. v. Dougherty, 39 Ala. 409.

This objection is rather1 technical at best. It has nothing of justice in it. And it is an unhappy use of a technicality when it is resorted to in order to defeat the great end of all litigation — the attainment of “right and justice.” — Const. Ala., 1867, § 15.

If Lampkin discharged the appellant from, all liability on the note by the agreement to extend the time of payment and received the consideration, as the bill clearly shows, he had no right to compel the appellant to pay it. His right to do this was utterly gone as soon as this agreement was entered into and the consideration was paid. — 37 Ala. 320, supra. The railroad company stand in Lampkin’s shoes. He could only transfer to them the right that was in himself, and no more. Nemo plus juris ad alienum transferre potest, quam ipse habet. — Coke, Litt. 309, b; 2 Kent, 324, marg.

The learned chancellor erred in dismissing the bill for want of equity. His decree is, therefore, reversed, and this cause is remanded for further proceeding in the court below, in conformity with this opinion. The appellee' will pay the costs of this appeal.