McRaney v. Coulter , 39 Miss. 390 ( 1860 )

Smith, C. J.,

delivered the opinion of the court:

This was a bill filed in the Chancery Court of Covington county for a new trial at law, which was granted; and the defendants appealed.

The material facts alleged in the bill'and proved are substantially these: The appellee brought suit against the appellants, in the Circuit Court of said county, on a promissory note. The presiding judge of the district being disqualified to sit in the cause, a trial was had before a special judge, selected as the statute directs; and verdict and judgment were rendered for the appellants. A motion was made for a new trial, at the hearing of which the special judge also presided. The motion was sustained, and the decision announced from the bench. Immediately thereafter the special judge withdrew without having made any entry, memorandum, or minute upon the motion docket, and, without having given any instruction to the clerk in relation to the subject. When the clerk was employed in making up the minutes, in copying the orders from the motion docket he observed that the word “ sustained” was written under or opposite the motion, on the docket; and knowing that the word was in the handwriting of the presiding judge he called his attention to it. The judge, recognizing the word to be in his handwriting, was unable to state whether the special judge had Requested or authorized him to make the minute or not. Andlthe clerk, not knowing whether the motion for a new trial was granted or not, made no entry in relation to it upon the minutes of the court. The bill contains no allegation, nor was there any evidence to show, that the appellee in person or by his counsel was present in court when the minutes were read, or that he caused them to be inspected at any time during the term.

The only question in the case is, whether the court did not err in granting the relief prayed for in the bill.

If it were conceded that the facts above stated make out a case, in which, according to the principles of equity, relief should be granted, it is nevertheless evident the appellee did not stand in an attitude in which he could claim the assistance of a court of chancery.

In bills of this character the rule of diligence is strictly applied. Hence, in the case before us, the appellee was bound to prove that the neglect or accidental omission of the clerk to enter the judgment on the motion for a new trial occurred without laches on his part, and that, by the use of proper diligence, the neglect or omission could not have been remedied or corrected; and thus have prevented the injury resulting therefrom. But, instead of being watchful and diligent, he relied upon the presumption that the clerk would do his duty. It is evident that, by an inspection of the minutes, the omission might have been perceived; or if the appellee or his counsel had been present in court when the minutes of that day were read, the omission or neglect of the clerk, whether accidental or designed, to enter thereon the judgment on the motion for a new trial, would doubtless have been discovered; and it is clear that, if it had then been perceived, the error might have been corrected.

' The record contains no proof to this effect; in fact there is no allegation, in the bill, which would, if such proof had been offered, have rendered its introduction proper.

Upon this state of facts it is not to be doubted that the appellee was in default. He failed to use the diligence which, upon well-settled principles, was essential to entitle him to the relief which was granted in the court below. We therefore reverse the decree and order the bill to be dismissed.