Barron v. Robinson , 98 Ala. 351 ( 1893 )

HARALSON, J.

Our rulings have been uniform and consistent to the effect that “although the petition may show that the defendant was prevented from making his defense by surprise, accident, mistake or fraud, yet, if it shows nothing more, and fails to show that he was prevented without fault on his part, it discloses no right to obtain a rehearing under the Code, or under any other law.”—Ex parte Wallace, 60 Ala. 267. A concurrence of injustice committed, and freedom from fault on the part of defendant, is indispensable to relief.—Waldron v. Waldron, 76 Ala. 289. “In snob a proceeding tbe law is strict in requiring not only a clear statement of a meritorious defense, but also allegation of tbe facts and circumstances wliicb are relied on to show that tbe party complaining acted with due diligence, and is chargeable with no fault or neglect in not having bad the matter of bis defense completely presented at tbe trial.” Ex parte Wallace, supra; Martin v. Hudson, 52 Ala. 279.

Our books abound with cases of apparent hardship with which tbe court has refused to interfere, because tbe parties complaining bad not brought themselves strictly within tbe rules above announced. 3 Brick. Dig. 677; 2 Brick. Dig. 280-1.

Tbe facts averred in tbe petition and answer are sufficient to show that tbe defendant was not diligent in preparing bis case for trial. He did not even inform bis attorney before, or at tbe time of entering on tbe trial, of tbe defensive matters be now brings forward. He did not apply for a continuance, but announced ready and went to trial. It does not appear be made a motion for a new trial at the term of tbe court at which judgment was obtained against him. He does not make known any newly discovered evidence, or other defensive matter, not known to him on tbe trial. The note be says be gave in compromise of both suits against him is attached to plaintiff’s answer to tbe petition, and shows that defendant was mistaken in saying it was in compromise of tbe suit in which this judgment was obtained. It shows, on its face, it was for another and different consideration — that of tbe rent of lands for tbe previous year. He now says be was surprised, confused and ignorant of the proper course to pursue, and that be did not make bis testimony as full and clear as he might have done if be bad bad more time for reflection. Doubtless every litigant who loses bis case sees where be might have doné better and would like to try it over again. Lord Tburlow once said, “Questions are not to be brought before tbe court in this way, merely to try which way tbe stick will fall,” and take the chances for another bearing. There must be stability in tbe judgments of courts. If misfortune has overtaken tbe defendant be makes no case for relief.

Tbe circuit judge committed no error in denying tbe petition.

Affirmed.