White v. Ryan

RICE, C. J. — After the adjournment of the term of the circuit court at which it has rendered the final judgment in a cause, the right to applyjjto it fora re-hearing, or new trial, did not exist before the Code went into effect. By section 2408 of the Code, that right was given, not to defendants generally, but to those only who had been prevented from making their defense by surprise, accident, mistake, or fraud, without fault on their fart. — Pratt v. Keils, 28 Ala. R. 390. The statute which gives the right, prescribes four months from the rendition of the judgment as the time, and a petition to a judge of the circuit court as the mode, in which it must be asserted, (Code, §§ 2408-2414;) and of course, the right must be asserted within the time and in the mode thus prescribed. — Samuels v. Ainsworth, 13 Ala. R. 366 ; Bettis v. Taylor, 8 Porter’s Rep. 564. Although the petition may show that the defendant was prevented from making his defense by surprise, accident, mistake, or fraud; yet, if it shows nothing more, and fails to show that he was so prevented without fault on his part, it discloses no right to obtain a rehearing under the Code, or under any other law. Tested by the rules above laid down, the petition in the present case was radically defective; for, if all the facts stated in it are true, they would not authorize any court, having regard for well-established legal principles and a sound public policy, to say that the defendant was prevented from making his defense in the original cause, loithout fault on his fart. — Stinnett v. Br. Bk. at Mobile, 9 Ala. R. 120; Pharr & Beck v. Reynolds, 3 ib. 521; Stein [403] v. Burden, 30 Ala. R.; Paynter v. Evans, 7 B. Monroe, 420; Lawson v. Bettison, 7 Eng. (Arkansas) R. 401; Land v. Elliott, 1 Smedes & Marsh. 608. If there was no other fault on his part, there was this, that he left the court during the trial term of the original cause, after employing an attorney, and filing a plea in bar, without putting that attorney “in possession of the means for trying or continuing the suit, if the witnesses did not attend.” — Pharr & Beck v. Reynolds, supra. The excuse alleged for his conduct, that he thought it impossible to reach the case, is wholly inadmissible. See what it Avould lead to, if every defendant might, by forming such an opinion as to his case, relieve himself from the employment of ordinary or reasonable diligence, and then be allowed to set it up as a title, in whole or in part, to a rehearing. The true position is this : that if a defendant forms such opinion, not from any thing said or done by the plaintiff or the plaintiff’s attorney, but from the appearance of the docket, and the opinions of others, including the presiding judge, expressed in conversations out of court, he cannot act upon it, except at his own peril; and if he does act upon it, he must take the consequences, one of which is that he shall not be treated as a party without fault. — Stein v. Burden, and others cases, supra ; Yancey v. Downer, 5 Litt. Rep. 8; Bateman v. Willoe, 1 Schoales & Lefroy, 201; Davis v. Presler, 5 Smedes & Marsh. 459 ; Green v. Robinson, 5 How. (Mississippi) Rep. 80 ; Faulkner v. Harwood, 6 Randolph’s Rep. 125. The errors assigned as to the rulings of the court on the trial of the original cause, cannot he considered, because the appeal is not taken from the judgment in the original cause; and if it had been, it would have been barred by lapse of time. — Code, § 3040. The appeal is from the judgment sustaining the demurrer to, and dismissing the petition for the rehearing, as to which there is no error. Judgment affirmed.