Knifong v. Hendricks

Allen, J. delivered the opinion of the Court. The Court is of opinion, that as it appears the appellees were surprised by the exclusion at the second trial of evidence which had been admitted without objection at the first trial, and that in consequence thereof a recovery was obtained for a sum far exceeding the amount of damages sustained, a new trial should have been granted, with leave to the appellees so to amend their pleadings as to present the real merits of the controversy. The Court is further of opinion, that as the appellees were prevented from making such motion for a new trial by the dispersion of the justices composing the Court, it was a proper case for relief in equity. But the Court is of opinion, there was error in perpetuating the injunction, setting aside and cancelling the judgment, directing a new trial of the cause which had been terminated, and in finally disposing of the suit in equity. The judgment was a security for any thing the appellant should thereafter appear to he entitled to; and the Court should have continued the injunction, directed proper issues, and upon the coming in of the verdict, perpetuated the injunction, or dissolved it in whole or in part, according to the finding of the jury. The decree of the Court below is, therefore, reversed with costs, and this Court, proceeding to render such a decree as the Court below ought to have rendered, it is adjudged and decreed that the injunction to the judgment in the bill and proceedings mentioned, be continued until a final hearing of the cause. And it is further adjudged and ordered, that an issue be made up and tried at the bar of said Circuit Superior Court, on the law side thereof, to ascertain and try, first, whether the horse in the condition of said bond of indemnity mentioned, was at the [216] time of the seizure thereof by the officer under the execution in said bond described, the property of said Felix Knifong or not; and if he was the property of said jveiix Knifong at the time of such seizure, then to ascerta^1 and assess the damages sustained by said Felix Knifing by. reason of the seizure and sale of the property ; and that the verdict of the jury be certified in order to a final decree.