Ex parte Walker , 54 Ala. 577 ( 1875 )

STONE, J.

In Shields v. Burns, 31 Ala. 537, a case like the present one, this court said, speaking of the facts'of that case : “ It is doubtful, to say the least of it, whether any court could say that the defendant was prevented from making his defense by surprise, accident, mistake or fraud. But, conceding that he was so prevented, still that, of itself, is not sufficient to entitle him to a rehearing. He must, in addition to that, show that the prevention was without fault on his part. If he lost the opportunity of making his defense by the neglect, inattention, or mistaken counsel of his own attorney, without any fraud or unfairness of the adverse party, it is, in law, as between him and the adverse party, the same thing as if he had lost it by his own neglect, inattention or fault.”

In Ex parte North, 49 Ala. 387, the doctrine of the above case is quoted and reaffirmed. In fact, the whole current of our authorities is to the same effect. — Pharr & Beck v. Reynolds, 3 Ala. 521; Albertson v. Goldsby, 28 Ala. 711; Elliott v. Cook, 33 Ala. 490 ; White v. Martin, 31 Ala. 400.

Tlie case made by the present record falls very far short of coming up to the rule declared above. It puts the petitioner’s counsel in fault, but then petitioner is held accountable for the fault, or inattention of his counsel. The petitioner even fails to show himself blameless. He should have attended the court, that he might be ready to make application for a continuance, or for a new trial, if necessary.

The circuit judge erred in granting the supersedeas in this cause. We approve and- adopt the rule of practice for the correction of errors like this, as declared in Ex parte North, supra, so far as the same is raised by this record. So, we approve the rule declared in the same case, as applicable to cases of refusal of a rehearing, when ordered by the court as a court. Where the refusal is made by the judge on the preliminary application to him, no appeal will lie. Such action could only be reached by mandamus.

Let a rule issue to the Hon. John Henderson, judge of 10th judicial circuit, requiring him to show cause why a peremptory mandamus shall not issue, commanding him to vacate said order for a supersedeas, and to dismiss the petition and motion of William Curry for a new trial under section 2814 of the Bevised Code, the return to which rule he is required to make to the next term of this court, unless, in the mean time, such order be made in the court below as will render a return unnecessary.

The costs of this proceeding are adjudged against the said William Curry.