Vannerson v. Pendleton's Administrators

Mr. Justice Clayton

delivered the opinion of the court.

The bill of exceptions in this case, was not taken until after the judgment was rendered ; of consequence, it does not bring up any errors which occurred during the progress of the trial.

The plaintiff has filed an affidavit, as the basis of an application for a new trial, in which he states, that he was prevented from reaching the court, before the trial took place, by high water; that being in the habit of attending the court regularly in person, he had no counsel who knew anything of the facts of the case; that his demand is just and true, and that injustice has been done him on the trial. Two other affidavits were filed, tending to support this statement.

The absence of a party from court, from unavoidable circumstances, may be good ground of new trial. Graham on New Trials, 161; Brooks v. Whitson, 7 S. & M. 513. The application will be watched with jealousy, and the power exercised with caution, but if there be no reason to believe that the cause is feigned, a new trial will be granted to prevent a failure of justice.

In this case, the party has shown enough to authorize the granting of his application.

Judgment reversed and new trial awarded.