Spencer v. Kinnard , 12 Tex. 180 ( 1854 )

Lipscomb, J.

The petition was filed, praying a new trial and an injunction enjoining the defendant from prosecuting execution on the judgment obtained by him against the petitioner. It is alleged in the petition, that judgment had been rendered in a suit against petitioner, purporting to be founded on a note given by the petitioner, to the defendant, for sixteen hundred and ten dollars; that the note had been given in consideration of property purchased by petitioner from the plaintiff, which trade was cancelled, and the property returned to the plaintiff, and the note given up to petitioner ; that petitioner threw the note into the fire place, and believed it to have been destroyed, until a short time before suit was brought, that he was informed that it was not destroyed, but that it had been seen by Mr. Hall, who shortly thereafter commenced the suit for the plaintiff, on the note that had been so cancelled, and the property for which it was given returned to the plaintiff, Kinnard. The petitioner alleges that he could have proved all of the facts alleged, on the trial, and had witnesses subpoenaed to sustain his defence; that he is informed that the witnesses did not attend, and that petitioner was confined at home by a violent attack of disease, and could not make the affidavit required by law, to procure a continuance; and there was a trial in his absence and a verdict and judgment rendered against him for the amount of the note ; that petitioner was unable to be present to make affidavit for a new .trial; that he can prove, if a new trial is allowed him, that the note sued on had been cancelled, and the property for which it was given returned to the plaintiff. The petitioner makes, as exhibits to his petition, some seven or eight affidavits of persons, to the truth of the allegations of the rescission of the contract, the return óf the property and the cancellation of the note sued on.

There are many other allegations in the petition, presenting a case of most extraordinary features. But we have not thought it proper to refer to all of them in this statement, and have stated only enough to sustain the conclusion we have arrived at in this case.

There was an injunction granted, which was demurred to, and the injunction dissolved, and the petition dismissed on motion, from which decision the petitioner appealed.

In an application to the Chancery for a new trial, at law, where the distinction of jurisdictions is observed, it is necessary to show, first, that injustice has been done by the verdict and judgment at law. If the facts contained in the petition and exhibits are true, there can be no question, but the mostgross injustice has been done to the applicant, and that if he cannothave a new trial, he will be unjustly, and by the fraud of the plaintiff in the suit and judgment, compelled to pay' upwards of two thousand dollars, without any consideration at all received for the same, a hardship and oppression, furnishing strong and sufficient grounds for relief, unless his own gross and culpable negligence has brought it on himself. We are bound to take these allegations as true ; and for all purposes necessary to our decision, the demurrer admits them to be true.

The next question is, has the complainant shown any sufficient and satisfactory reason why he did not make his defence on the trial of the action on which the judgment complained of was rendered ? We believe that this is sufficiently manifested, from the fact of his severe illness. This illness is to be regarded as an infliction of Providence, to which should not be superadded, so severe a pecuniary liability, as a penalty for not doing the very thing that the Providential infliction had made it impossible that he could do. It would be worse than mockery, to say to a sick man, prostrate and grappling with disease, why did not you attend Court, advise your counsel of your witnesses, and make an affidavit, if necessary, for a continuance ? or make one to support an application for a new trial ? If you have suffered injustice, and an oppressive and unjust judgment has been rendered against you, it is all your own fault. You ought to have been in Court, whether able to be there or not. For that is really the proposition.

But it is said, that though sick, the petitioner ought to have had his counsel there to represent him. We trust that it is not insisted, that counsel should represent their clients, in making affidavits. Surely this is not believed to constitute any part of the duty of counsel to their clients. The ends of Justice sometimes make it necessary, that an attorney should give evidence for his client, but it should always be regarded by counsel as a misfortune, to be placed in such a position ; and Courts should extend no countenance to the practice, and only tolerate it in cases of pressing necessity.

The allegations in the petition, taken as true, supported by the affidavits, made exhibits, would have entitled the party to a new trial; and we cannot doubt that he is entitled to the relief sought in his petition. Rot a case cited by the appellee’s brief, where relief was refused, was similar to this. Ro one of the cases was so well made out, in showing the iniquity of the judgment, and also satisfactory reasons why the defence had not been made at the proper time. And we have shown that both should concur.

The decree of the District Court, dissolving the injunction and dismissing the petition, is reversed and the cause remanded for further proceedings.

Reversed and remanded.