
    Barron v. Robinson, et al.
    
    
      Petition for Supersedeas of Judgment, and for New Trial.
    
    1. lie-hearing; when no right to obtain it. — Though a petition lor a re-hearing may show that tiie defendant was prevented from making his defense by surprise, accident, mistake or fraud; yet, if it fail to show that the defendant was without fault, it discloses no right to obtain a rehearing.
    2. jS'<une; case at bar. — Where the petitioner did not apply for a continuance at the call of his case for trial, but'announced ready; made no motion for a new trial at that term; makes no claim of newly discovered evidence, or other defensive matter, and did not inform his attorney of the defensive matters presently urged by him, his petition was rightly denied.
    Appeal from Pike Circuit Court.
    Tried before the Hon. John P. Hubbard.
    The petitioner, appellant here,- presented his petition to the Hon. Jno. P. Hubbard, judge of the 2nd Judicial Circuit, within four months after a judgment for $1,000, had been recovered against him, in the Pike county Circuit Court, at the suit of J. R. Robinson, and others, praying for a re-hearing, under § 2872 of the Code. The grounds for this application as disclosed are, that on the trial of the cause in which said judgment was rendered against him, the defendant was prevented from making his defense in this, that the plaintiffs in that judgment, had another suit against defendant, which stood for trial at the same time of tbe one, in wbieb judgment was rendered; tbat about three months before the rendition of said judgment, defendant gave plaintiffs attorney his note for $30, which was taken in full settlement for the damages in both of said suits, and defendant believed no question remained in the case but one of costs; that it was agreed, and it was his understanding and belief, that both suits were settled by the note, and, in consequence, he had no witnesses summoned for his defense in either case, and he did not inform his attorney, before the trial, what his defense was, and when the case was called, and on trial, be was surprised when- the plaintiff’s attorney swore, that said note was not taken in payment of both suits; that he did not know, and was not informed, that he would have to meet that issue, until he had answered ready for trial, and plaintiff’s attorney testified, it was not the agreement that said note was given in compromise of both suits ; and defendant testified against the plaintiff’s attorney on the trial, and swore that said note was given in settlement and compromise of both of said suits.
    The petitioner sets up two defenses, one of which was, that said suit was for cutting trees on plaintiff’s land, and that they were not cut down by defendant, or by his direction but were cut by another person against his consent and contrary to his directions, and that he had two witnesses whose names he gave, whq could corroborate him, in that statement.
    The plaintiff in the judgment, demurred to the petition for insufficiency, on many grounds, which demurrer was sustained, and defendant amended his petition. The plaintiffs then, presented their answer to it.
    The answer stated, that one of said suits was for the rent of land, for the year, 1890, and the other, was for the statutory penalty of cutting trees off of plaintiff’s lands; that during the pendency of said suits, defendant represented to J. D. Gardner, one of plaintiff’s attorneys, that he had paid to another of plaintiff’s attorneys, Mr. Wiley, $25.00 on the rent, and requested said Gardner to allow the balance of the rent, — $30,—to be paid in three monthly instalments of $10 each, and to this request, said Gardner acceded, and took from defendant, a note in writing, the original of which was attached to the answer, and which reads, “for rent of their place last year, I hereby agree to pay Robinson, Taylor & Co., or bearer, thirty dollars, in monthly installments of ten dollars each, commencing from the 15th of the month, and I waive all exemptions in favor of the" payment of this debt;” — that at the time said instrument was executed, nothing was said about the settlement of the suit for cutting the trees, and the note was only giren to settle wliat defendant said was a balance due on the rent of plaintiff’s lands for the preceding year; that when said suit for cutting the trees was called, the defendant went to trial on the plea of not guilty, and made defense, that he had made an executory contract for the purchase of the land, and did not set up, that he had made settlement for the damages; that he did set up in the suit for rent, that he had paid the full amount agreed to be paid in money, and in a note for thirty dollars, which was submitted to a jury, and found against defendant.
    Defendant in his amended petition, reiterates much of what he had stated in his original petition, states that he and Gardner swore adversely to each other, touching the settlement of said suit; that defendant did not make known to the court, after said Gardner testified, that he was surprised by his testimony, nor did he make known to his attorney, that he had other evidence that he could produce, because he was ignorant of his rights, and believed that as he had announced ready, he could not afterwards make a motion to continue the cause ; that on the trial, he testified to said agreement as alleged in his petition, but being surprised as he was, and confused, he could not make his testimony as full and clear as he might have done, if he had had more time for reflection.
    The judge refused to grant the prayer of the petition. There is set forth in the transcript, what purports to be a minute entry reciting the action of the judge, as if done by the court, but that is a clerical error. The petition never found its way into the court, and was acted on by the judge.
    M. N. Carlisle, for appellant.
    Gardner & Wiley, for appellee.
   HARALSON, J.

Our rulings have been uniform and consistent to the effect that “although the petition may show that the defendant was prevented from making his defense by surprise, accident, mistake or fraud, yet, if it shows nothing more, and fails to show that he was prevented without fault on his part, it discloses no right to obtain a rehearing under the Code, or under any other law.”—Ex parte Wallace, 60 Ala. 267. A concurrence of injustice committed, and freedom from fault on the part of defendant, is indispensable to relief.—Waldron v. Waldron, 76 Ala. 289. “In snob a proceeding tbe law is strict in requiring not only a clear statement of a meritorious defense, but also allegation of tbe facts and circumstances wliicb are relied on to show that tbe party complaining acted with due diligence, and is chargeable with no fault or neglect in not having bad the matter of bis defense completely presented at tbe trial.” Ex parte Wallace, supra; Martin v. Hudson, 52 Ala. 279.

Our books abound with cases of apparent hardship with which tbe court has refused to interfere, because tbe parties complaining bad not brought themselves strictly within tbe rules above announced. 3 Brick. Dig. 677; 2 Brick. Dig. 280-1.

Tbe facts averred in tbe petition and answer are sufficient to show that tbe defendant was not diligent in preparing bis case for trial. He did not even inform bis attorney before, or at tbe time of entering on tbe trial, of tbe defensive matters be now brings forward. He did not apply for a continuance, but announced ready and went to trial. It does not appear be made a motion for a new trial at the term of tbe court at which judgment was obtained against him. He does not make known any newly discovered evidence, or other defensive matter, not known to him on tbe trial. The note be says be gave in compromise of both suits against him is attached to plaintiff’s answer to tbe petition, and shows that defendant was mistaken in saying it was in compromise of tbe suit in which this judgment was obtained. It shows, on its face, it was for another and different consideration — that of tbe rent of lands for tbe previous year. He now says be was surprised, confused and ignorant of the proper course to pursue, and that be did not make bis testimony as full and clear as he might have done if be bad bad more time for reflection. Doubtless every litigant who loses bis case sees where be might have doné better and would like to try it over again. Lord Tburlow once said, “Questions are not to be brought before tbe court in this way, merely to try which way tbe stick will fall,” and take the chances for another bearing. There must be stability in tbe judgments of courts. If misfortune has overtaken tbe defendant be makes no case for relief.

Tbe circuit judge committed no error in denying tbe petition.

Affirmed.  