Vallentine v. Holland

40 Ark. 338

• Court: Supreme Court of Arkansas
• Decided: May 15, 1883
• Status: Published

Opinions

Smith, J.

This was a- hill in equity for a new trial upon the ground that the Court had, in an action at law, without fault of the plaintiff, deprived him of his constitutional right of appeal, by failing to pass upon his motion for new trial during the term at which its decision was rendered.

The appellee, Bergman, had brought replevin for five bales of cotton before a Justice of the Peace against appellant and one Alexander De Valcourt. He recovered judgment in the Justice’s court, and again on appeal, in the Circuit Court. Appellant applied for a new trial in due time, but the further consideration of the motion was continued until the succeeding term of the court, when it was overruled. Appellant then brought the case here, where his appeal was dismissed because the lapse of the term without disposing of his motion for new trial, had deprived the Court of all power over it.

Bergman then sued out an execution, which was levied upon the property of appellant, who seeks to enjoin the execution of said judgment.

Courts of Chancery will direct a new trial after a judgmeirfc at law, when the complainant can show, first, that his adversary has obtained an advantage that cannot be conscientiously retained, as that a successful plaintiff had no cause of action, or an unsuccessful defendant had a meritorious defense; second, that his own conduct has been free from fault and unmixed with negligence; third, that, owing to some fraud, accident or mistake, not imputable to him or his attorney, he was not present at the trial, nor able'to make his defence there; or if there, that he was prevented from'!moving for a new trial because the Judges dispersed or the term lapsed before it could be made or disposed of; or that, on account of the existence of some o.ther peculiar circumstance, he is without -remedy at law.' The subject is learnedly discussed in a note to 19 American Decision, 609.

The rule was recognized and applied by this Court in Leigh v. Armor, 35 Ark., 123, where the Judge was suddenly taken ill, and for that reason the motion for a new trial was left undecided.

In Oliver v. Pray, 4 Ohio, 175, where a party had failed to give a sufficient appeal bond, owing to the mistake or omission of the clerk who took it, and the Supreme Court had for that reason quashed the appeal, a new trial was granted on the appellant’s showing probable ground that he had a case at law.

The counsel for Bergman suggests that, as the record entry shows a continuance of the cause without objection on the part of Vallentine, the only accident that there could have been about it was the ignorance of Valentine or his counsel that the judgment became final after the end of the term. But as the continuance does not appear to have been granted upon the application of either of the the parties, it will he presumed to have been done of the Court’s own motion, for some cause that appeared satisfactory to it, as a want of time to consider it before adjournment. It is the act of the Court, which ought not to prejudice the rights of any one.

The only remaining question is whether the bill shows that the defendants in the original action had a meritorious defense. From the transcript of the record and proceedings attached to the bill, which includes a bill of exceptions setting out the evidence adduced on the former trial, it appears to have been a contest between parties, one of whom claimed to hold the proceeds of the cotton in controversy under a landlord’s lien, and the other under a mortgage of the crop executed subsequently to the lease. The Circuit Court decided that the mortgagee held the superior lien, "Without prejudging the merits, there is a sufficient probability that the Court committed, an error to warrant another trial.

The decree, dismissing the bill, is reversed and the cause remanded with directions to overrule the demurrer to the bill, and for further proceedings.

DISSENTING OPINION BY