Huntress-Brown Lumber Co. v. Wyman ( 1893 )

Mitchell, J.

Without attempting to discuss at length the contents of the affidavits on the motion for a new trial, we would simply say that we are satisfied from an examination of the record that, in view of all the facts, — as, for example, the death of Costello, the original defendant, the resignation of the active executor of his estate, the ignorance of Mrs. Costello, thé only remaining resident executor, of the exact situation of the cause, the fact that Costello was only trustee for another person, who was not a party to the suit, and the probable consequent misunderstanding as to which party should defend the action, coupled with the additional fact that so short a time intervened between the substitution of the executors as parties and the trial of the action, — taken all together, presented a case peculiarly addressed to the sound discretion of the trial court as to whether the parties had not made out a case of accident and surprise from the consequences of which they ought to be relieved, and permitted to try the action on its merits. We fail to see any abuse of discretion under the circumstances in the court’s granting a new trial.'

The contention of appellants that they were entitled to judgment on the pleadings is not correct; for if, as the answer alleges, as we construe it, the actual possession and control of the property was turned over to Costello before appellants levied’on it, it is immaterial whether the original agreement between plaintiff and Costello constituted a bailment or a conditional sale; and, even if it constituted a conditional sale, the failure to file the contract would not render it void as to appellants if they had actual notice of the state of the title at the time of the levy.

Order affirmed.