Haber v. Lane , 45 Miss. 608 ( 1871 )

Simralb, J.:

Were the plaintiffs in error entitled to a new trial upon the matters disclosed in the affidavits ? The.rule, as recognized in Thompson v. Williams, 7 Smedes & Marsh. 275, is that the showing made must discover merits, and the surprise must be such as care and prudence could not provide against. The defendant, notified by the service of the summons, of the pendency of the suit, is bound, at his peril, to appear and make his defense. If he fail to do so, and judgment go against him, he must, in his application for relief, satisfy the court that neither laches or negligence are imputable to him, but that his absence from the trial and want of preparation were referable to some accident, or providential hindrance, beyond his control. It might be conceded that Haber offered a sufficient reason why he did not attend at the trial. But that does not suffice. If his presence, and that of his absent witnesses, would not have produced a different result, why should the plaintiffs be deprived of the advantage of the verdict and judgment ? The onus is upon Haber to make out a “defense” to the suit, which, by accident and surprise, he was deprived of the opportunity of presenting on the trial. We think the affidavits come short of this. The supplies for the partnership farm were furnished to Lane on his individual credit, and were so charged on Haber’s books. Lane offered to give an agricultural lien, under the statute of 1867, which Haber declined to take, choosing to rely on Lane’s personal credit. Haber had, therefore, no lien on the crops of cotton and corn and other property. Haber ought to have made the attachment referred to in his affidavit an exhibit thereto, or he ought to have set out, fully and distinctly, its character, so that the court could see upon what predicate of law it rested. It is strongly inferable from the context that it was sued out under the agricultural lien “act” of 1867. If so, it is plain that the transaction did not come within the terms of that law. Nor is it perceived that the case is helped if the proceedings were'instituted under the ordinary attachment law. In order that Haber may claim benefit, under the proceeding, it is not enough to show, simply, that the attachment had been issued and levied, but, also, either that he had obtained a judgment subjecting the property to his debt, or, that the case not having come to trial, he must show a “right” so to subject the property. We cannot say, if the matter of defense set up in the affidavit had been put in evidence before the jury, it would conclusively follow that the plaintiffs should- not recover. It may be a link in a concatenation of facts, contributing to a complete defense. But, in applications to displace verdicts regularly rendered, the applicant must make it manifest that injustice has been done. A full and complete defense must be set up, so as to convince the court that, upon another trial, a different result would be reached. This application might properly have been refused upon the vagueness and uncertainty of the character of the legal proceeding as described in the affidavit upon which the plaintiffs in error relied to hold the property in controversy.

Let the judgment he affirmed.