
    Martin & McTyer v. Hudson.
    
      Rehearing under Section 2814 of Rev. Gode.
    
    1. Motion to quash; when should he overruled.— A petition for rehearing at law should not be dismissed and the supersedeas quashed, on a mere general motion not pointing out any specific defect. Such a motion is in effect a mere general demurrer.
    2. Rehearing at laxo; what necessary to axxthorize. — 'To authorize a rehearing at law, under the statute, there must concur a valid defence, the failure to make it (without fault on the part of the petitioner) resulting from surprise, accident, or fraud, and the exercise of all reasonable diligence to interpose the defence before judgment.
    3. Same. — Where the failure to make the defence was due to the accidental absence from sickness of the witness by whom the proof was to be made, it must be shown that he was the only witness by whom the defence could be established; a rehearing not being authorized on account of the failure to introduce mere cumulative or corroborative evidence.
    Appeal from Eufaula City Court.
    Tried before Hon. E. M. Keils.
    The opinion states the case.
    Btjeord & Dent, for appellant.
    Benjamin Gardner, contra.-
    
   BRICKELL, C. J.

Prior to the Code, the term of the court was the limit within which the power of granting new trials could be exercised. 2 Brick. Dig. 276, § 3. The Code enlarges the power of the court in this respect, and authorizes a grant of rehearings in particular cases, on application properly made, after the close of the term at which final judgment was rendered. R. C. §§ 2812-28 ; Pratt & McKenzie v. Kiels & Sylvester, 28 Ala. 390 ; White v. Ryan & Martin, 31 Ala. 400.

The section of the Code under which this application is made provides, that if a party is prevented from making his defence by surprise, accident, mistake, or fraud, without fault on his part, he shall be entitled to a rehearing, on application made within four months from the-rendition of judgment. R. C. § 2814. It is observable, that the statute is framed in almost the identical language of the rule on which a court of equity proceeds in granting or refusing relief, against a judgment at law, because of defences available in a court of law. Hence, in construing the statute, and in determining the right to relief under it, the decisions of ‘ the court of chancery have been regarded as furnishing controlling analogies.

The application in this case was made within the prescribed time, after due notice to the appellee. It avers a full and complete defence to the suit in which the judgment was rendered, — the defence being payment of the demand. It also avers that this defence would have been established by the evidence of one of the petitioners who made the payment, and that by reason of very sudden and unexpected illness, he was prevented from being present on the trial. That on the evening before the trial, he saw his attorneys and notified them where to send for him, when the case should be called, but a short distance from the court-house. The case being called, each party announced readiness for trial, and he was sent for, but was found too ill for attendance, and was under the influence of morphine to such an extent that he was not conscious. On being informed of these facts, an application for a continuance was made by his attorneys, which was refused, as was an application that a verified statement of his evidence should be received instead of his oral examination. A supersedeas was granted on the filing of the petition. When the application came on to be heard in the city court, the appellee made a general motion, not assigning any specific cause, to quash the supersedeas and dismiss the petition, which was granted. Under our system of pleading and practice, we doubt if such a motion- should ever be entertained. The statute of amendments, is very liberal, and extends to the curing of nearly every fault, defect, or mistake, which may be committed in pleading, or in the suing out of process. That such faults, defects, or mistakes may be clearly pointed out, and the party afforded the opportunity of correcting them,by amendment, if he can consistently with the facts, no general demurrer is allowed, but each demurrer must be for matter of substance, distinctly stated. R. C. § 2656. A motion of this character, in a case of this kind, is in effect a general demurrer. It can reach no defect, of which at common law advantage could not be taken by a general demurrer. It involves every mischief which is sought to be avoided by abolishing general demurrers. The party against whom it is interposed has not his attention called to the particular defects in his pleading, at which the motion is aimed, so that by amendment he can cure them. On appeal to this court, the judgment might be affirmed or reversed because of objections not taken in the primary court, and which, if made there, the result reached here would be avoided. The motion should have been overruled, and we are bound to pronounce that the court erred in granting it.

The statute under which this application is made confers a right to a rehearing only on defendants who had a valid defence, which they were prevented from making, by surprise, accident, mistake, or fraud, without fault on their part. To authorize a rehearing, there must be a concurrence of a valid defence, — the failure to make it, must have resulted from surprise, or accident, or mistake, or fraud, and there must have been the exercise of reasonable diligence to interpose the defence before judgment. White v. Ryan Martin, 31 Ala. 400; Shields v. Burns, Ib. 535; Stewart v. Williams, 33 Ala. 492.

The application in this case discloses a valid defence. It further discloses that the absence of the petitioner, on whose evidence it was expected to make the defence, was an accident. That this absence was communicated to the court and its cause, so soon as it was known, and made the ground of an application for a continuance. That it was not earlier known, cannot be attributed to any fault of the petitioners, or their counsel. The petition does not, however, disclose that the petitioner was the only witness by whom the defence could be proved. The want or discovery of merely cumulative evidence is not, as a general rule, ground for a new trial. Otherwise, it has been said, “ not one verdict in ten would stand. Some corroborating evidence may always be found or made; and the trial by jury would become the most precarious of all trials.” Hilliard on New Trials, 380, § 13. It is perhaps a stricter rule in equity, that it will not relieve against a judgment at law, because of mere cumulative evidence to establish a legal defence. Hilliard on Injunctions, 182, § 56. The rule should be strictly applied to applications for a rehearing at law. If the application is because of the absence of cumulative evidence — evidence corroboratory, or in support of evidence offered to establish an attempted defence — the application should not be granted. Jury trials, and judgments are now lamentably precarious, without permitting this statute (intended only for extreme cases, and to substitute for a remedy existing before only in equity, an easier and more expeditious remedy at law) to be perverted into a mere instrument for procuring new trials, protracting litigation, and a temptation to fraud and perjury in the fabrication of evidence, to meet the necessities of a defence, once condemned by verdict and judgment.

The petition should have averred that the petitioners had no other evidence of the payment than the testimony of the petitioner, prevented by sickness from attendance. If there was no written evidence of the payment, and he was the only person, other than the plaintiff, to whom the fact of payment was known, a clear case for relief under the statute exists.

It is insisted by the counsel for appellee, that entertaining the petition will in effect be a revision and reversal of the action of the city court on the application for a continuance,' — a matter resting entirely within its discretion. The application for a continuance was properly made, to relieve the petitioners from the imputation of laches. If they had not made it, they could not have affirmed they were prevented without fault on their part from making their defence. They would have failed to take one of the measures provided them by law, to secure a hearing at law. The application is a fact only, touching the question of diligence. The correctness of the action of the court in refusing it does not come under review. McBrown v. Somerville, 2 Stew. 515 ; Phair v. Reynolds, 3 Ala. 521.

The judgment is reversed and the cause remanded.  