Miller v. Mitchel, Reid & Co. , 38 Ga. 312 ( 1868 )

Brown, C. J.

1. We think the Court below erred in granting a new trial in this case, as the defendants in the Court below bring themselves within no rule of vigilance which will justify such action of the Court in their favor. In the preparation of the case for trial, no effort seems to have been made to rebut the allegations of the plaintiff as to the value of the goods. Indeed, the case was risked upon the point that the defendants had delivered the goods to an agent of the plaintiff, and was not therefore liable. Upon the trial, the plaintiff appeared in Court, and swore that the person who assumed to control the goods was not his agent, and the jury no doubt believed him, as is readily inferred from their verdict. If defendants were surprised by this, they had a perfect legal remedy. They had weeks within which to enter an appeal, as there was an adjourned-term of the Court, and they were in time, if it was entered within four days after the final adjournment of the Court. No appeal was entered, and no attempt was made to appeal, till the fifth day after the end of the term. This'was gross negligence on the part of the defendants.

The judgment was rendered at the October term, 1867. No further effort was made by the defendants to set it aside or to obtain a new trial, till after an execution had issued. It then appears, from a transcript of the record, that a bill was filed praying an injunction and a new trial, which the Chancellor refused to sanction, on the 1st June, 1868. The bill was then abandoned, and the matter rested until 23d October, 1868, more than a year from the date of the verdict, when the present motion was made.

The only plausible ground in this motion is the newly discovered evidence of Burr and Woddail, as to the value of the goods, their condition, etc. But the same difficulty arises here that runs through the whole proceeding, so far as the defendants are concerned. There has been no diligence.

Burr was the clerk of the defendants at the time the goods were stored with them ; and it was their duty, when preparing for trial, to have made diligent inquiry of him as to his knowledge of these facts. They failed to do this, and the present application is made, partly on the ground that they have discovered that he knew important facts about the goods, a year after the trial.

Woddail was sworn and examined as a witness, on the trial, and though the goods had been stored with him and his partner, after they were found at the railroad depot, not a question is asked him by the defendants on the trial as to their condition, value, and the like. Why did they not then inquire what he knew on these points?

' 2. The 6th section of the 11th article of’the new Consti- • tution of this State is invoked in aid of the application. It provides that “no motion.for a new trial, bill of review, or other proceeding to vacate any judgment, order or decree, made since the 19th of January, 1861, by any of said Courts for fraud, illegality or error of law, shall be denied by reason of the same not having been moved in time. Provided, said motion or application is made in twelve months from the adoption of this Constitution.”

It was certainly not intended to grant new trials in all cases tried since 19th January, 1861, especially when the party was cast in the suit, and lost his rights by his own negligence. In this case, there is no proof that either fraud, illegality, or error of law exists.

It is complained that the verdict was too large. We think this may be true. But as the defendants took no legal steps to set it aside, and acquiesced in it till after the time allowed them by law to move in the matter, we have no power to afford them relief, without the violation of well established rules of law.

Judgment reversed.