O'Barr v. Alexander , 37 Ga. 195 ( 1867 )

Walker, J.

1. The Court did right to refuse the continuance. It was asked by the attorney on the ground that his client had written to him a letter stating that the client was sick and unable to travel. This was no evidence of the fact of such sickness even if the showing in other respects had been sufficient.

2. An attorney, in the practice of his profession engages for reasonable skill and diligence, and is responsible for ordinary neglect. Cox vs. Sullivan, 7 Ga. R., 148; and cases cited. Perhaps this is about as definitely as his duties and liabilities can be defined. What may be a want of skill in any particular case, or what may be ordinary neglect, must be decided by the facts and circumstances of the case which may be under consideration.. It is exceedingly difficult, if not utterly impossible, to lay down any general rule which should control the measure of liability in all cases. Good faith must exist on the part of the attorney towards his client, and when this is shown, the absence or presence of reasonable skill and diligence must in each case be determined by its own facts. 7 Ga. R., 147.

3. Attornies have entrusted to their management cases of difficulty and doubt, and it is not surprising that they commit mistakes of judgment in some instances. Such mistakes do not necessarily render them liable for the consequences. Says Lord Mansfield, in Pitt vs. Yalden, 4 Burrow’s Rep., 2060, “That part of the profession which is carried on by attorneys is liberal and reputable, ' as well as useful to the public, when they conduct themselves with honor and integrity ; and they ought to be protected, where they act to the best of their skill and knowledge. But every man is liable to error; and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake, and to be punished for it, by being charged with the debt which he was employed to recover from his client, from the person who stands indebted to him. Yotonly counsel but judges may differ or doubt, or take time to consider. Therefore, an attorney ought not to be liable in cases of reasonable doubt.” Again, “An attorney is liable for the consequences of ignorance or non observance of the rules of practice of the Court; for the want of care in the preparation of the cause for trial; or of attendance thereon with his witnesses ; and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction.” Godefroy vs. Dalton, 6 Bingh. Rep., 467, (19 E. C. L. R., 214): “ It seems too hard to say an attorney would be bound to construe the section as applicable when the Judges of this Court differ in opinion as to whether it is or not.” Per Coleridge, J., Chapman vs. Van Toll, 8 Ellis and Bl. Rep., 407, (92 E. C. L. R., 407).

Let us examine the facts a little. The lien of O’Barr purported to be upon the whole premises, and to enforce this lien was the duty of the defendants, if they could. Judge Irwin had decided that the lien was not good because it was in favor of a sub-contractor. Several lawyers of distinction in their profession, concurred with Judge Irwin in opinion. Judge Trippe and the Supreme Court decided that the lien was not wholly good, nor wholly bad, but bound the interest of Hilburn in the premises. Under this state of facts the Court very properly declined to instruct the jury that the question as to what were O’Barr’s rights was one free from difficulty; for such was the effect of the request made of the Court.

4. Under the facts of the case the defendants were clearly protected by the statute of limitations; and, this is in effect admitted by the plaintiff, as his effort to procure a new trial on account of newly discovered evidence, to try to rebut this plea, pretty clearly shows. Both upon the statute of limitations, and the merits of the case, the verdict should have been for defendants, and therefore a new trial should not be granted, for the errors apparent in the charge of the Court in this case.

5. The only evidence by which the verdict of the jury is sought to be impeached, is the affidavit of one the jurors. This Court has repeatedly held that a juror will not, after a verdict has been rendered, be heard to impeach his verdict. This is well settled, Coleman vs. The State, 28 Ga. R., 84.

6. If a jury be confined in the investigation of a case for a length of time) which exposes them to hunger and cold, the Court may, upon the application of the jury, direct them to be furnished, at the expense of the County, with such refreshments as he may’deem proper. Eefreshments should not be furnished to the jury except by the direction of the Judge, aud if refreshments be furnished without such direction it might, perhaps, be a good ground for a new trial, and more especially where spirituous liquors are furnished. Perhaps, also, the Court might deem it proper to take other steps in the matter, to preserve pure the administration of justice, and vindicate the honor and dignity of the Court itself. But to justify the setting aside a verdict, or taking other proceedings in the premises, the Court should be informed by competent evidence of the impropriety of the conduct of the jury.

7. The newly discovered evidence in this case was not sufficient to entitle the party to a new trial. It was not this discovery of new evidence, new facts, which the plaintiff made, but the materiality of facts long known and understood, which he wishes to make appear to be newly discovered evidence. To entitle a party to a new trial on account of newly discovered evidence it must appear that the newly discovered evidence relates to new and material facts, discovered after the rendition of the verdict, and not the ascertainment of the materiality of known evidence, which can serve as a cause for a new trial. Wright vs. The State, 34 Ga. R., 114; Rev. Code, Sec. 3665. Being satisfied with the verdict in this case, we think it best that the litigation should end.

Judgment affirmed.