
    Hoskins v. Hight.
    
      Action on Promissory Note, by Payee against Maker.
    
    1. New trial, on ground of accident, mistake, or surprise. — When a party applies for a new trial in an action at law, on the ground of accident or mistake operating a surprise, such as the failure to summon material witnesses, which was not discovered until the cause was called for trial, or after the trial was begun, he must show that he then moved for a continuance, or took other proper steps to postpone the trial until the attendance of the absent witnesses could be procured.
    2. Hame. — A new trial should not be granted on account of the absence of material witnesses who were never summoned, where it appears that the clerk was never instructed to summon them ; and it is immaterial whether the failure to so instruct the clerk was the fault of the party himself, his attorney, or his attorney’s clerk.
    Appeal from tbe City Court of Anniston.
    Tried before tbe Hon. B. E. Cassady.
    Blaicwell & Keith, for appellant,
    cited White v. Pyan, 31 Ala. 400; Shields v. Burns, 31 Ala. 535; 16 Amer. & Eng. Encyc. Law, 533-4.
    Caldwell & JohNston, contra.
    
   STONE, C. J.

-This appeal is taken from tbe rulings of tbe lower court in granting to defendant a new trial. Demurrers being sustained to several grounds of tbe motion for a new trial, only tbe second ground of said motion remained, and it was upon tbis ground tbe court granted tbe new trial. Tbe defendant was, therefore, granted a new trial, because “be was prevented from making bis defense thereto by accident or mistake, and without fault on bis part.” The only evidence contained in tbe record is that introduced on tbe motion for a new trial; and tbis evidence consisted of affidavits of tbe defendant, bis counsel, and a clerk in tbe latter’s office. Tbe defendant’s affidavit sets out tbe facts that constitute bis defense to tbe suit. His attorney’s affidavit averred that, upon tbe defendant stating to bis firm tbe matter of bis defense, and giving him tbe names of tbe witnesses by whom tbis defense was to be proved, tbe “affiant’s recollection is that, before tbe trial of said cause, be instructed W. P. Archer, a young man in the employ of said firm, to have the clerk of the City Court [the court in which the cause was pending] issue subpoenas for said witnesses to be present at the trial, and affiant’s first information that they were not subpoenaed was when the case was called for trial.” The affidavit of W. P. Archer was, that he had no recollection as to any instructions to have the clerk of the City Court to subpoena the desired witnesses, “and he took no steps to have such subpoenas issued.” The only proceedings had in the trial of the case, that are shown by the record, are the filing of the summons and complaint, the filing of a plea by defendant, through his counsel, setting out his defense to the suit, and the rendering of judgment by the court. This judgment, as set out in the record, is as follows : “Came the parties by attorneys, and plaintiff withdraws his replication to defendant’s plea; and this cause being submitted to the court, after proof shown, it is considered by the court that the plaintiff recover of the defendant,” &c.

"We have taken the trouble to set the facts'out in detail, in order that our ruling may be the more clearly understood. The appeal is taken under authority of the act “to allow appeals to the Supreme Court from decisions of the City and Circuit Courts in this State, granting or refusing to grant motions for new trials,” approved February 16, 1891. Acts 1890-91, p. 779. Our authority for reviewing the ruling of the lower court in this case, by which he granted a new' trial, is given in the last clause of the said act, in the following language : “And the Supreme Court shall have the power to grant new trials, or to correct any errors of the Circuit or City Court in granting or refusing the same.”

The power to set aside verdicts and grant new trials is inherent in our courts of common-law jurisdiction; and in the exercise of this power the court is called upon to use its equitable discretion to prevent a palpable and material wrong. As said by Olopton, J., in Cobb v. Malone, 92 Ala. 630, “The power is essential to prevent irreparable injustice, in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice, on the part of juries, which sometimes occurs.”

When, in the exercise of this inherent power, the trial court grants a new trial, the presumption is that it has rightfully used its discretion; but, if the contrary appears, and it is plainly shown that the trial court has abused its power, this discretion, being judicial in its character, should be revised on appeal. — Edsall v. Ayres, 15 Ind. 286: Lloyd v. McClure, 2 Greene (Iowa), 139; Frieley v. David, 7 Iowa, 3.

Tbe grounds upon which a new trial may be granted are as varied as the circumstances of each individual case. In the exercise of a sound discretion, the court must consider the particular surroundings, and have special regard to' the equitable demands of each separate case. But text-writers and different courts recognize many different grounds for the granting of new trials.' Surprise and mistake are placed in this category; and there are many instances where new trials have been granted, because one party to a suit has been taken by surprise, or has been prejudiced, on account of a mistake or inadvertence for which he was not responsible, and which was not occasioned in any way by his negligence. No doubt it was intended that the ground upon which the new trial in this case was asked and granted should receive its force and efficacy from this division of the causes that justify such equitable interposition by the court; "We shall so consider it; for the ground as stated in the motion is, that the defendant “was prevented from making his defense thereto by accident or mistake, and without fault on his part.”

In order to obtain a new trial on the ground of mistake and surprise, there are certain requirements which must be fulfilled as conditions precedent to the exercise by the trial court of this discretion. It must be shown that the surprise or mistake occurred in reference to some matter material to the issue involved; that injury resulted therefrom, and that the party asking for a new trial has not been guilty of negligence or fault in the premises. — Beadle v. Graham, 66 Ala. 102; Brooks v. Douglass, 32 Cal. 208; Jackson v. Worford, 7 Wend. 62; Huber v. Lane, 45 Miss. 608; Walker v. Kretsinger, 48 Ill. 502; Fretwell v. Laffoon, 77 Mo. 26; 16 Amer. & Eng. Encyc. Law, p. 532.

The first duty of a party surprised at the trial, or upon the discovery of a mistake that will prejudice his interest, is to take proper legal steps to continue or delay the cause; for “he can not neglect this in the hope of securing a verdict in spite of the surprise (or mistake), and then obtain a new trial.” In the case of Shipp v. Suggett, 9 B. Monroe (Ky.) 5, the court observed: “The correct practice in such case is for the party at once, upon the discovery of the cause, during the progress of the trial, which operates ■ as a surprise on him, to move a continuance or postponement of the trial, and not attempt to avail himself of the chance of obtaining a verdict on the evidence he has been able to introduce, and if be sbonld fail, then to apply for a new trial on tbe ground of surprise. To tolerate sucb a practice would bave tbe effect of giving to tbe party surprised an unreasonable and unfair advantage, and tend to an unnecessary and improper consumption of tbe time of tbe court.” We approve this language, and announce tbe rule, tbat before a party can be granted a new trial on tbe ground of surprise and mistake, wbicb was known or discovered before or during tbe trial, be must first move for a continuance, or take sucb legal steps to postpone tbe trial of tbe cause as tbe circumstances of tbe particular case may require. Washer v. White, 16 Ind. 136; Young v. Com., 4 Gratt. 550; Gee v. Moss, 69 Iowa, 709; Wells v. Sanger, 21 Mo. 354; Rogers v. Hine, 1 Cal. 429; Bell v. Gardner, 71 Ill. 319; Doyle v. Sterga, 38 Cal. 459; Dewey v. Frank, 62 Cal. 343; 16 Am. & Eng. Encyc. of Law, p. 533. This motion for a continuance, or effort to postpone tbe trial, is affirmative matter, and should, therefore, appear of record. In its absence, this court can not presume sucb motion or effort was made ; and tbe cause must be considered in tbe light of sucb facts and matters of record as appear in tbe transcript. This conclusion is decisive of tbe only question presented by this appeal, for no motion for a continuance, nor any effort to post-jione tbe trial, was made when tbe absence of tbe important witnesses was discovered. Tbe trial court should not bave granted tbe motion for a new trial, under tbe circumstances shown in tbe record.

We could rest our opinion here; but, considering tbat this phase of tbe question lias never before been presented to us for review, we deem it best to decide tbe correctness of tbe lower court’s ruling in granting a new trial upon tbe ground stated in tbe opinion, and tbe evidence produced to substantiate sucb ground.

Tbe accident or mistake tbat prevented tbe defendant from making bis defense, was tbe absence of certain witnesses, whose names be bad given to bis counsel to bave summoned. These witnesses were never subpoenaed, and this is, no doubt, at least one of tbe reasons they were absent. These witnesses were not subpoenaed by reason of tbe mistake or negligence of defendant or bis counsel, whose recollection was that counsel directed bis clerk to bave tbe clerk of tbe court subpoena tbe witnesses. Tbe clerk had no recollection of any sucb direction, and never instructed tbe clerk of tbe court to subpoena tbe said witnesses.

While it is true that a new trial may be granted to a party who was deprived of tbe benefit of tbe evidence of a witness wbo was excusably absent, and whose testimony would have probably affected the result, yet, in order to claim tbe benefit of a new trial on this ground, it must, as a general rule, be sliown that the witnesses had been regularly summoned, and that their absence was not caused through the negligence of the party asking for a new trial. As said in 16 Amer. & Eng. Encyc. of Law, 541, “It is a general rule, that a new trial should not be granted on account of the absence of witnesses, when a continuance has not been asked for, or the absence of witnesses is caused by any form of neglect by the party applying for a new trial.” — Huhland v. Sedgwick, 17 Cal. 123 ; Tilden v. Gardiner, 25 Wend. (N. Y.) 663; Lovev. Breedlove, 75 Tex. 649 ; Gee v. Moss, 68 Iowa, 318; Young v. Com., 4 Gratt. (Va.) 550; Wells v. Sanger, 21 Mo. 354 ; Rogers v. Hine, 1 Cal. 429.

■ The result is the same, whether the absence of the witnesses was caused by the mistake or negligence of the party, or of his attorney. “The mistake or negligence of the attorney appearing for the party to a suit is the mistake or negligence of the party ; and no new trial will be allowed where such mistake arises from negligence or lack of skill.” — Handy v. Davis, 38 N. H. 411; Heath v. Marshall, 46 N. H. 40. The failure to make defense to a suit, by reason of a mistake of the defendant or his counsel, caused by negligence, can not justify the granting of a new trial, it matters not how effective or just the defense may be. — 16 Amer. & Eng. Encyc. of Law, 549, n. 4. '

Under the principle above1 announced, the judgment of the City Court granting a new trial is reversed, and a judgment is here rendered overruling the defendant’s motion for a new trial.

Reversed and rendered.  