Clark v. Jarrett , 61 Tenn. 467 ( 1873 )

McFarland, J.,

delivered the opinion of the Court.

Although this Court seldom interferes with the discretion of a Circuit Judge in a matter of continuance or new trial for additional testimony shown by affidavit, yet we are constrained to do so where it is made to appear, as it does in this case, that the ends of justice propably require it.

The plaintiff in .error, who was defendant below, used, as we think, reasonable diligence in preparing his defence, and he shows by his affidavit that he was misT led by a remark of the Judge when the cause was first called, that the cause did not stand for trial, although the Judge made this remark from a misunderstanding of the statement of counsel.

Being misled by this statement, and bearing of sickness in bis family, be left tbe Court and went to bis borne in tbe adjoining county. His attorney applied for a continuance, giving all tbe reasons of wbicb be was informed.

Tbe affidavit shows that by- bis absence, and tbe absence of bis witnesses, plaintiff in error was prevented from making bis defence. Tbe merits of bis defence are specifically set forth, and tbe names of tbe witnesses given. Tbe injunction, wbicb bad hitherto stayed tbe progress of tbe cause, had been very shortly before dissolved. No copy of tbe decree dissolving tbe injunction bad been filed. It was considered doubtful, as it perhaps might well be, whether tbe cause stood for trial at that Term.

It is true that, as a general rule, new trials ought not to be granted on an affidavit of newly discovered testimony, without tbe affidavit of the witnesses by whom tbe new proof is to be made; but here tbe party was misled and prevented from making bis defence at all, and tbe application of his attorney for a continuance refused.

Upon tbe facts disclosed, wbicb we need not fully set forth, we reverse tbe judgment, and grant a new trial.