Simpson v. Golden

McCLELLAN, J. — If there was error in sustaining the demurrer to pleas 6 and 7, it did not prejudice the defendant, since he had the full benefit of the matter laid in these pleas under other pleas. The evidence for the plaintiff tended to show that he held the note sued on as collateral security, the legal title being in him by indorsement of the payee ; and also that the defendant had “actual notice of his .title and [340] ownership before the payment made by him to Achison.” The evidence for defendant tended to show that plaintiff held the note as general manager of, and for the Land Co. to which it was made, so that payment to Achison for the company was well made. The testimony on the issue of efficacious payment vel non was that of plaintiff for himself and of Achison for defendant. Plaintiff’s testimony was given ore tenus, Achison’s by deposition. The trial was without jury, the city judge finding for plaintiff, and judgment being entered accordingly. On this state of case, we will not disturb the conclusion of the trial judge. His opportunity to reach a correct result was better than ours is ; and, to say the least, his finding is not clearly erroneous.— Woodrow v. Hawving, 105 Ala. 241. If defendant was surprised by the testimony of Golden to the effect that the Land Co. owed him and that the note was indorsed to him as collateral to his debt, he should have moved a continuance of the case or postponement of the trial that he might have opportunity to meet this unexpected evidence. We cannot assume the trial court would not have granted any seasonable request or motion looking to such opportunity, if reasonably satisfied that this testimony of Golden was of a nature to surprise defendant and put him at a disadvantage. The defendant having failed to move a continuance or postponement, and ju-oceeded voluntarily with the trial, he was in no position, after the case was decided against him, to ask for a new trial on the ground of such alleged surprise. Having speculated upon the chances of a favorable result upon the evidence then before the court, and lost, he cannot now demand another trial that he may introduce other evidence not available to him on the first trial. — Hoskins v. Hight, 95 Ala. 284 ; Barron v. Robinson, 98 Ala. 351. So far as the motion for a new trial is based upon newly discovered evidence, it is fatally defective for not negativing fault on defendant’s part in failing to discover such evidence before the trial. — McLeod v. Shelby Manufacturing & Improvement Co., 108 Ala. 81. Affirmed.