Brock v. South & North. Ala. R. R.

SOMEBYILLE, J. — Section 3161 of the Code of 1876 authorizes rehearings in certain cases, after final judgment in the Circuit Court, “where a party has been prevented from making his defense, by surprise, accident, mistake, or fraud, without fault on his part.” Section 3171 extends the benefit of this provision to plaintiffs, so far as applicable to them. The application in this case is made by appellant under the foregoing statute, and his petition shows the following facts: A suit pending in the Circuit Court of Limestone county, instituted by the appellant, Brock, against the appellee, had, at a regular term of the court, been dismissed for want of prosecution, neither the plaintiff nor his attorney being present at the time. A motion to reinstate was made by the plaintiff’s counsel, and was overruled. The petition avers that, at the time the cause was called for trial, the plaintiff’s attorney was necessarily absent, being engaged in an important trial simultaneously progressing in the United States Circuit Court; and that the plaintiff himself was also absent, having been informed by his attorney that no advantage would be taken of his absence by opposing counsel. The petition was presented to the circuit judge in vacation. A demurrer was interposed by defendant, which was overruled ; and the adverse party was permitted to controvert the petition, by affidavit in writing, as authorized by the stat [82] ute; which, resulted in the ordering of a supersedeas. At the ensuing term of the Circuit Court, another demurrer, the same in substance as the first, was interposed; and being sustained by the court, the petition was dismissed. The record does not show that any motion was made by the petitioner, asking permission to amend. There were several grounds of demurrer assigned; among other's, the objection that “ the alleged accident, fraud, or mistake, ivas not shown to have occurred without the fault of the plaintiff, or petitioner.” This is the only point raised by the demurrer which we propose to consider, as it proves fatal to the petition, if correctly taken; and we think it clearly was. '1. We hold, that when a cause is regularly called for trial, the absence of counsel in another court, necessitated by conflicting professional engagements, however urgent, is not necessarily ground for a new trial, but is matter of discretion with the lower court,.which tiiis court will not undertake to control. — Hilliard on New Trials, p. 420, § 53; Jacob v. McLean, 24 Mis. 40; 2 Brickell’s Digest, p. 276, § 1, cases cited. Nor would the mere opinion of the attorney, expressed to the client, that his attendance was not necessary, avail to render him without fault. To give encouragement to such a rule of practice, would be disastrous to that speedy administration of justice in the courts of the country, which it is of the gravest importance to uphold. — Hill, on New Trials, p. 422, § 55; White v. Ryan & Martin, 31 Ala. 400. 2. It is urged by appellant, that the statement of the foregoing ground of demurrer is not sufficiently distinct, within the requirement of section 3005 of the Code (1876). We think this objection is wdthout force, as the statement points out with reasonable certainty the defect oh which the party demurring prays the judgment of the court. — Burns v. Mayor, &c., of Mobile, 34 Ala. 485. ' 3. ■ It. is further insisted, that the overruling of the first demurrer was a-bar to its interposition the second time, upon the final hearing in'-the Circuit Court. The record, however, shows that the . judgment of the court on the first demurrer was interlocutory, and not final. It wras not pronounced on the merits of the case; and, therefore, the action of the court was no bar to the subsequent proceeding to which objection is taken. — Perkins v. Moore, 16 Ala. 9. 4. The last assignment of error is based upon the proposition, that the court below erred in dismissing the petition, after • the demurrer to it Avas sustained, without affording appellant an opportunity to amend. The record fails to show that he requested such permission; by any motion or sug■gestipn made to the court;- • and for this reason, this point [83] can not now be raised in tbe appellate court.— Guilford, &c., v. Kendall, 52 Ala. 651. In the view of this case which we have taken, it is unnecessary to consider the other questions presented by the record. Our conclusion is, that the Circuit Court did not err in sustaining the demurrer and dismissing appellant’s petition for a rehearing in this cause. Bbickell, C. J., not sitting.