Smith v. Brand

McCay, Judge. It is very clear to us that the defendant below was seriously damaged by the absence of his counsel, and it is equally clear that the absence of the counsel was for very good reasons. Judge Floyd was misled by the Judge himself, and Mr. Billups was absent from providential cause. We think the discretion of the Judge was not improperly exercised in granting this new trial. The principles of justice required it. Courts ought not to permit themselves to be made the instruments of injustice; and though it be true that if parties get into trouble from want of diligence, they can claim no indulgence, yet, when, as was the case here, the counsel are not at fault, we think the client ought not to suffer. The Judge who tried the case, having granted a new trial on this ground, and he being so situated as to know the truth better far than we can, we will not disturb his judgment. Judgment affirmed.