Allington v. Tucker

STONE, J. The averments of the petfljon in this case Jo not make out a case of surprise, accident, mistake, or fraud, without fault on the part of the petitioner, for which section 2408 of the Code makes provision. ^ No surprise or fraud is alleged; and the only accident or mistake asserted is, that the petitioner had entirely forgotten at the trial that, before suit brought, he had, through his attorneys, tendered $20, which was refused; and that an important witness ofhis “ moved and travelled about a great deal before said trial, and it was exceedingly difficult to ascertain his whereabouts, so as to obtain his testimony.” As to the alleged tender, it is claimed that the petitioner made it through his attorneys ; yet he asserts that he had entirely forgotten so important a feature in his defense. This is not accident, without fault on his part. Moreover, the tender was insufficient in amount, as shown by the verdict. If we were to grant a rehearing, on the ground that a witness moved and travelled about a great deal, so that it was exceedingly difficult to ascertain his whereabouts, we apprehend few verdicts would stand. The law exacts diligence fi’om suitors j and if necessary, parties must, in the preparation of their causes, combat and overcome difficulties. — White v. Ryan, 31 Ala. 400 ; Elliott v. Cook, 33 Ala. 490 ; Stewart v. Williams, ib. 492. Judgment affirmed.