Steadman v. Simmons

Brown, C. J. 1. After a careful examination of this record, we are satisfied there was no such abuse of his discretion by the Judge who tried this case, in the Court below, as will authorize us to reverse the judgment and order a new hearing, because he refused to grant the continuance upon the showing made. The granting or refusing to grant a continuance, is a matter within the sound discretion of the Court; and that discretion will not be controlled in this Court, so long as it is not manifestly abused. 2. We see no error in the judgment of the Court in reference to the evidence. There was legally no plea except the general issue in this case, which under section 3406 of the Code is considered as filed in all cases which are answered at the first term. The special plea alleges that the notes were [595] executed since-June, 1865, in settlement of various dealings and accounts, between tbe plaintiff and defendant during the war, and defendant claims the benefit of the Relief Act of 1868. In the case of Smith vs. Belk et al., decided at this term, we held that a note given in 1866, in renewal of a former note for a debt due prior to Juné, 1865, is a new contract, and is not embraced in the Act known as the Relief Law of 1868, and that it was not error in the Court below to order the pleas filed under the Relief Act stricken, if they do not contain matter good as a defence, under the laws applicable to contracts made since June, 1865. That decision controls this case, and it was not error in the Court to refuse to hear evidence under a plea which was Aot applicable to the case at bar. I dismiss this part of the case with the remark, that no evidence was offered to prove that any part of the consideration of this note was a slave, or the hire of a slave. On the contrary, Colonel Simmons, the plaintiff, when introduced by the defendant, testified that both notes were given for land. 3. It was objected by the defendant, that the then term of the Court, was not the judgment term, but only the appearance term of the case, as the declaration was not filed twenty days before the last term of the Court. Upon the declaration was an acknowledgment in these words, “service acknowledged, copy, process, and filing before Court waived, February 10th, 1869,” which was signed by the defendant. It was insisted by counsel for plaintiff in error, that a defendant cannot waive the time of filing the declaration in office. As between him and the plaintiff, at least, we see no reason why he may not waive the filing twenty days before Court. In this case, the service was acknowledged and the time of filing waived on the 10th of February, and the Court did not sit, till the third Monday in March, more than twenty days after the waiver was made; which shows that this was not an effort to make a case, brought after the expiration of the return day, returnable to the first term of the Court, which as against third persons could not be done. [596] ' 4. The jury returned an informal verdict, and the Court permitted counsel for plaintiff, in presence of the Court, and of the counsel for the other party, to write out the proper form of a verdict in conformity to the intention of the jury. But on objection being made to this by the counsel for the defendant, the Court sent the jury back to their room to make the calculation, and write their own verdict, which after some delay, they did, and returned it into Court. The plaintiff stated, that he did not claim interest on the principal sum sued for; but the jury found for him both principal and interest. He then moved to be permitted to write off the interest and take a judgment for the principal, found by the jury without interest. The Court passed an order allowing this to be done, and this is complained of. We see no error in this. If a jury by mistake or otherwise, find more than the plaintiff claims, there is no reason for setting aside the verdict and granting a new trial, if the plaintiff will write off the excess and take a judgment for the sum to which he is? justly entitled. There were other points raised during the progress of this case, which we deem it unnecessary to notice. After an attentive consideration of the case made by this record, we are satisfied that there exists no legal defence to these notes, and that this case was brought to this Court for delay only. We therefore feel it to be our duty to award to the plaintiff in the Court below, against the defendant, the sum of seven hundred and fifty-eight dollars and fifty-five cents damages, being ten per cent, upon the amount of the judgment rendered in favor of the plaintiff in the Superior Court. We are satisfied from close observation that cases are not unfrequently brought up by bill of exceptions simply for delay. As we are unwilling to throw impediments in the way of parties who in good faith invoke the judgment of this Court for the protection and enforcement of their rights, we have been reluctant to exercise the power given us by the Code to award damages against parties who have brought their cases here for final adjudication. But we find in practice that nothing is regarded as settled by the decisions of this Court. Whenever [597] there is any considerable sum of money or much feeling involved in a case, no matter how well, or how often, the principles governing it have been settled or decided, the case is brought here, and the ingenuity of learned counsel is relied upon, to draw some hair-splitting distinction, between the former decisions of the Court, and the one at bar, which will at least protect the client against a judgment for damages, and afford him the necessary delay. In view of this growing evil and of the vast increase of litigation springing out of it, we feel constrained to change the practice in this particular. We shall not, therefore, in future hesitate to award damages, when we are satisfied that the questions involved in the case, are governed by well settled rules of law which are known and well understood generally, by intelligent members of the legal profession. We feel that this is due alike to the Courts, and to parties who are burdened and annoyed by vexatious and unfounded litigation. Judgment affirmed.