
    The New Castle and Richmond Railroad Company v. Chambers and Wife.
    It was held that a new trial should have hcen granted to the appellants in the Court below, under the special circumstances shown by an affidavit made in support of their motion, the statements in the affidavit not having been controverted by the adverse party.
    Thursday, June 7.
    The truth of facts alleged in an affidavit in support of a motion for a new trial, may be controverted by the adverse party.
    APPEAL from the Cass Circuit Court.
   Gookins, J.

Chambers and wife, who were the plaintiffs below, claimed damages against the appellants for constructing their road through the plaintiffs’ lands. Appraisers were appointed, pursuant to the statute, who assessed the damages at 500 dollars, from which assessment the railroad company appealed tojthe Circuit Court, where there was a trial and verdict for the plaintiffs for 888 dollars and 88 cents. Motion for a new trial overruled, and judgment. The railroad company appeals.

In support of the motion for a new trial the appellants read the affidavit of Williamson Wright.

The affidavit states that “he is director of the Newcastle and Richmond Railroad Company, which is now changed under the law of Indiana to the name of the Cincinnati, Logansport and Chicago Railroad Company; that he is the general agent and superintendent of the line of road north of Madison county, and, as such, had full power and authority to employ counsel and manage and control the officers of said company. That under such authority he, with Cyrus Taber, a heavy stockholder in said road, called upon Mr. Daniel D. Pratt, an attorney, to retain generally his services as attorney for the company, and at such interview it was agreed by and between the parties, as defendant understood, by your affiant, that said Pratt was retained and employed as the attorney of the Neiocastle and Richmond Railroad Company in all cases then pending, except one of one Henry H. Helm, in which he was personally employed, and in all cases that might in future arise in which the company was a party; and was to be paid such reasonable fees as might be demanded for such services. That said Wright relied upon said employment, and supposed that said Pratt was the counsel in said cause, and called upon Stephen Taber, a partner of said Daniel D. Pratt in the practice of law, to have the witnesses subpcenaed, just before the sitting of the Court, and was then informed that Mr. Pratt was employed for Thomas Chambers, as counsel in his cause. That your affiant called upon Mr. Pratt, and found he considered himself as employed by said Chambers before his employment by the company. That this was on the first day of the present term of this Court, and your affiant’s urgent business required his immediate presence in Cincinnati, connected with the road. That he called upon Daniel D. Pratt, and told him of his reliance upon him for his legal services, and the inability to have another attorney employed and facts and defence made known, as your affiant’s immediate presence was required in Cincinnati. That said Pratt agreed to continue the case over to the latter part of the second week, and your affiant left expecting to return and in person attend to said suit, as your said affiant understood from said Pratt that the said cause should be continued to the third week, if the business should keep the Court so long in session, and your affiant should not return. That your affiant employed no one, nor did any authorized agent employ an attorney, to appear in said cause, in the Cass Circuit Court. That said Wright is informed that said Pratt persuaded one Hewry Swift to appear in said cause, representing to said Swift that said Pratt would dismiss said cause, and said Wright would be defaulted for not attending to said suit, and advised him, as a friend, to attend to said cause; that said Swift was not advised of the defence or the witnesses for the defence. That great injustice will be done said company if a new trial is not granted in this cause. That the party expects to show that the benefits arising from the construction of the road equal all the damages, or are within a small sum of the amount. That they can prove that said Chambers has been paid for fencing the road, which, as your affiant is informed, was included in the damages assessed in said cause, and he further states that said testimony, as your affiant is informed was given upon the trial of said cause, could be in part explained and in part rebutted, if an opportunity could have been had by your affiant. No other action was or would have been taken, than to have had the appeal dismissed if your affiant was not present to attend trial.” ■

It seems to us that the facts stated in the affidavit ought to have entitled the defendants to, a new trial. It is suggested by the counsel for the appellees that Swift, who appeared for the defendants below, was a practising attorney, a brother-in-law to Wright and a member of his family, and an employee of the company; and that the suggestion of the plaintiff’s counsel to -Swift to look after the interests of the company was prompted by courtesy to Mi-. Wright. We can not judicially take notice of the matters here suggested, as they do not appear in the record; but if they did appear, still the defendants were prejudiced by the unauthorized interference of Sioift, and that is the controlling feature in the case.

It is insisted that the remedy of the company was against Sioift, who is not shown to be insolvent. Had the motion for a new trial not been made before judgment, and if his interference had been wholly upon his own motion, and without any suggestion from the opposite party, the position assumed would be entitled to more consideration; though we can not say that even then it would have been their only remedy. Kent, C. J., in Denton v. Noyes, 6 Johns. R. 296, plainly intimates that he would go further. In that case the judgment was retained, lest the plaintiff should be prejudiced by the loss of his lien, in consequence of a misplaced confidence in the attorney who appeared, and. whom he supposed to have authority; but the defendant was let in to make his defence. The same course was directed by this Court, in the case of Pierson v. Holman, 5 Blackf. 482.

The facts stated in the affidavit are not controverted as they might have been, if untrue, and we think that under the particular circumstances of the case a new trial should have been granted.

As the motion for a new trial was,made before judgment, the case is to be distinguished from those in which a judgment already rendered has been ordered to stand as an ultimate security for the plaintiff for whatever amonnt might be finally recovered.

H. P. Biddle, for the appellants.

D. jD. Pratt and 8. C. Taber, for the appellees.

Per Curiam.

The judgment is reversed. Cause remanded, with instructions to the Circuit Court to grant the defendant a new trial, upon the payment by him of all the costs in the action.  