
    Ballard v. Railroad.
    
      (Nashville.
    
    January 5, 1895.)
    1. Chaitceey Coubt. Will not grant new trial, when.
    
    Chancery Court will not grant a new trial upon an averment that complainant was deprived of his remedy by appeal by reason of the refusal or failure of the trial Judge and opposing counsel to carry out an agreement to complete bill of exceptions and ■perfect appeal after the close of the term at which the case was tried. Such agreements are contrary to public policy. (Post, pp. 207-210.) '
    
    2. Same. Same.
    
    Chancery Court will not g-rant a new trial unless complainant shows affirmatively that his rights were lost in the former proceeding By fraud or accident, unmixed with any fault or negligence of himself or attorney. {Post, pp. 206, 207.)
    
    Cases cited and approved: Kearney v. Smith, 3 Yer., 137; 7 Cranch, 332.
    PROM SMITH.
    Appeal from Chancery Court of Smith County. B. Ml Webb, Ch.
    T. J. Eisi-ieR and S. F. Wilson for Ballard.
    Turner & Smith, Hale & Lee for Railroad.
   Wilkes, J.

The case presented by the record, so far as need be stated, is that it is a bill in chancery, seeking to obtain a new trial of a cause already tried in a law Court on its merits, and appealed to the Supreme Court, and there dismissed, because the appeal was not perfected in the time allowed by law and the practice in such cases.

The Chancellor, on demurrer, dismissed the bill, and complainants hare appealed and assigned as error the action of the Chancellor in not rehearing the case upon its merits.

The jurisdiction and power of the Chancery Court to grant new trials, as well as to relieve from judgments at law when a proper case is made out, is well established. The rule is laid down by Chief Justice Marshall in 7 Cranch, 332, as follows:

“Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or agent, will justify relief by a Court of Chancery, if the equity of the applicant is free from doubt.”

This rule has been approved and followed in Tennessee in a multitude of cases. See cases cited 1 King’s Digest, Sec. 737; Kearney & Moone v. Smith & Jackson, 3 Yerg., 127.

The case as presented in the present record, is that the trial Judge, by consent of the attorneys of both parties in the action at law, agreed- to write out his charge after the close of the term at which the cause was tried, and to perfect the bill of exceptions by a certain day, which was to be set for an adjourned term, but failed to do so, and delayed it, over the appellant’s protest, for more than a year; that the attorneys of appellee agreed that the delay should not vitiate the appeal, but that the record might be so made up as to show that the bill of exceptions was completed and appeal perfected during the term, so as to appear regular upon its face; that appellant did not know that the agreement and perfecting of the record had not been consummated until the case was called for trial in the Supreme Court, when the record did not appear, as it had been agreed it should, but showed the bill of exceptions filed and appeal perfected after the time allowed by law, when, on motion of ap-pellee, the cause was dismissed because of such failure to perfect the record in the time prescribed by law, as shown by the record. While the appellee states in his bill that he' did not know, until the case was called in this Court that the record was not made up as agreed upon, he does not allege that he might not have ascertained this fact by an examination of the transcript, nor does it appear that, by proper attention to the entries made, they might not hare been made to conform to the agreement as entered into.

If, therefore, we could regard such an agreement as legal and valid, appellant has not shown that diligence, unmixed with negligence, that moves a Court to grant a new trial of a caxise already tried upon its merits. But neither this Court nor the Court of Chancery can grant relief upon any agreement of the trial Judge and attorneys in the Court below to delay the completion of bills of exception and the perfecting of appeals beyond the term at which the case is tried, nor can any relief be predicated upon the failure or refusal of the Court or opposing counsel to carry out such agreement, even if made. A practice permitting bills of exception to be made out and appeals perfected after the trial term would be against public policy, and would inevitably result in differences between opposing counsel and the trial Judge, and between the counsel themselves, as to what the evidence and charge of the trial Judge really was, and would be detrimental to the proper dispatch and conduct of business in the Courts.

This Court cannot encourage, or, indeed, recognize, the practice of making up bills of exception after the adjournment of the trial term. If a trial Judge fails or refuses to write out his charge, or to sanction it as written, the remedy is given to compel him to do so by mandamus. It is said the terms of the trial Court press so closely upon each other that it is impracticable to perfect the records during the sitting of the Court. If this is so, it is a matter which addresses itself to the Legislature, and not to 'this Court.

A new trial in equity cannot be granted upon the facts stated in the bill, and the decree of the Court below is affirmed, with costs.  