Tarver v. McKay , 15 Ga. 550 ( 1854 )

By Court.

Starnes, J.

delivering the opinion.

[1.] It is abundantly evident, from the record in this case, that the recovery of mesne profits, upon the trial at Common, Law, depended, almost altogether, upon the testimony of Wade C. Cox, as to the quantity of land under cultivation. The affidavit of this witness, appended to the bill, the truth of which is not denied by the answer, shows, that he erred in his testimony on this point—that he mistook the locus, (having “ in his mind another lot of land”,) and that he was mistaken, as tO’ the number of acres under cultivation.

The materiality of this testimony is, thus, apparent.

But another very necessary consideration is, as to the exercise of sufficient diligence, on the part of^the plaintiff in error, after he had discovered the mistake of this witness.

It is insisted, that he should have had this mistake corrected during the trial. The record, however, shows that the mistake was discovered after the trial; that Cox testified according to his belief and supposed knowledge, at the time. And we cannot see, nor was it explained, how the witness could have been made to correct this mistake during the trial.

It is also objected, that there was not,proper diligence in moving for a new trial, before the Court below.

It is true, that a new trial should not be granted by a Court of Equity, to a party against whom a judgment has been rendered in a Court of Common Law, unless there has been proper diligence exercised in the Court of Common Law, by the party applying. And it has been correctly decided, that one feature of such diligence, is an application for the rule nisi, during the term at which judgment is rendered, and the filing, under the proper sanctions, of a brief of the evidence.

[2.] According to this record, there was no failure in the exercise of diligence, in this case. An application for a new trial was made in time, and, as the record shows, was prevented from being heard, and a brief of the evidence from being filed, by tte “sudden and unlooked-for adjournment” of the adjourned term of the Court, “without doing any business, and before the plaintiff in error, or his counsel, could get to Court”. Taking this as true, there was no want of diligence, in that sense of the term in which a Court of Justice uses the word. Taking it as true, the plaintiff in error had resorted to the use of those reasonable and judicious means and appliances, proper to procure the end which he had in view, and he was thwarted in their exercise, by circumstances, (as to him,) accidentally occurring, which he could not control, and could not reasonably have anticipated and provided against.

In this sense, it would seem, that he was entitled to be placed in the category of one, who, by accident, and without negligence or fault, on his part, had been prevented from prosecuting his rights in a Court of Common Law, and on this account, was entitled to relief in a Court of Chancery. (Graham on N. T. 573, 574.) Booth vs. Stanper, (6 Ga. R. 175.)

Such relief, we are disposed to extend to the plaintiff in error, so far as to protect him against the recovery for mesne profits. And as it has been made known to us, that the defendant in error has expressed a willingness to remit the recovery for mesne profits, and as we see no reason to interfere with the, judgment of the Court below, on any other ground than that stated, we will, accordingly, by our judgment, put the parties upon terms.

We therefore order and direct, that unles the defendant in error, at or before the presentation of this, our judgment, in the Court below, do, in writing and in proper form, the same to bo entered on the minutes of the Court below, remit and release to the plaintiff in error, the sum of eight hundred and fifty dollars, being the amount of mesne profits or rent, recovered in said.case, then, the judgment in the Court below shall be reversed. But if, at or before the time specified, the defendant in error shall remit the said mesne profits, as prescribed, then the judgment shall stand affirmed.