Hamilton v. Moore

Fishes,, J., delivered the opinion of the court. This is an appeal from a decree of the Chancery Court of Carroll county, overruling a demurrer to the complainant’s bill. The object of the bill was to obtain a new trial at law, on the ground that the judgment was either obtained by mistake, or affirmed in this court in consequence of a mistake in making up the record of the proceedings in the Circuit Court. The facts are briefly as follows: The complainants were sued in the Circuit Court of Carroll county, as the securities of William P. Bole, as sheriff of said county, on account of the taxes which he failed to pay into the county treasury. It appears that the case was tried upon an agreed state of facts; and the bill then proceeds to state ■thatby'mistake of the draftsman, “said agreement admits that the roll of the Board of Police of Carroll county, levying the taxes for the year 1850, was placed in the hands of said tax-collector, and was in his hands when he collected said taxes.” That this admission is an error; that no such order or copy was ever placed in his hands, and that the said sheriff made said collections without any assessment roll, or order of the Board of Police of said county. It appears that the complainants prosecuted their writ of error to the judgment rendered against them, and never complained of any mistake until after the judgment was affirmed in this court. By the exercise of ordinary diligence, the mistake could have been discovered in time to have made the proper correction in the Circuit Court. The parties must have known the facts upon which the court pronounced its judgment, and they could, by the ordinary means, certainly have made the discovery of the mistake in time to have moved for a new trial before the adjournment of the court. A bill for a new trial at law, proceeds upon the idea that [634] the party, owing to some circumstance which he could not control, was prevented both from obtaining a fair trial at the time and under the circumstances attending the trial, and that he was prevented from moving for a new trial before the adjournment of the court. Without this showing, or something equivalent to it, a court of equity will never interpose to grant a new trial at law. Decree reversed, demurrer sustained, and bill dismissed.