Lough v. Bragg ( 1872 )

By the Court.

Berry, J.

Two appeals are taken in this case. One is taken from an order by which the court below refused to permit defendants to put in an amended and supplemental answer.

Defendants’ motion for leave to interpose such answer was addressed to the discretion of the court, and we see no reason for questioning the propriety of the exercise of such discretion in this instance. The denial of the moti on is, in our opinion, amply justified by the reasons given by the learned judge of the district court.

As to the other appeal, the facts are as follows: This action was once' before brought to this court, upon appeal from an order of the district court denying plaintiff’s motion for judgment, notwithstanding the verdict rendered for defendants. By the decision of this court, the order thus appealed from was reversed, and the district court directed to render judgment for the plaintiff. Judgment was accordingly rendered by the district court, agreeably to such direction, and in obedience to the mandate of this court. From this judgment the defendants appeal at this time. Defendants’ counsel makes the following statement in his brief, viz : “ We bring up the judgment for review in this court, only in the nature of a motion for a re-argument,” and as ground for such re-argument, it is claimed that this court fell into an important error of fact in its former examination of the case. If the error-suggested was committed, the proper remedy was by an application to this court for leave to re-argue, according to customary practice. If, under any circumstances, a departure from this practice could he justified, the case at bar presents no features which should tqke it out of the ordinary rule. No facts are made to appear showing that defendants could not, by the exercise of ordinary diligence, have secured a re-argument if there was any occasion for one. So far as appears, there is no greater hardship in this case than in any other in which a party has lost an opportunity for re-argument by not applying for it in season.

In justice to ourselves, however, we feel bound to say' that as a reference to the opinion will show, the alleged error of fact was not, as counsel seems to think, important in the decision of the former appeal. We then determined that the’ answer set up no valid defense to the note which was the subject of the suit, and that, therefore, the motion for judgment notwithstanding the verdict, should have been granted Having thus determined the appeal, it was not strictly necessary for us to proceed (as we did,) to the consideration of evidence which' was introduced for the purpose of proving what was not pleaded in the answer, and which was objected to. It was in considei’ing this evidence that we made the statement alleged to be erroneous in point of fact, viz.: that “the evidence tended to show that the dped (from plaintiff to Bragg,) conveyed a perfect title to the land therein described, and there was no evidence whatever to the contrary.” It will be seen then that the alleged error was not important in the determination of the appeal, since that had already been determined upon its merits, before the court entered upon the examination of the evidence We will only add that, perhaps, on account of his own familiarity with the ground, the counsel failed to appreciate the obscurity of the evidence, and the aid which our researches would have received from a map, or a more elaborate argument.

Order and judgment affirmed.