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want of diligence in either of these respects is fatal to his subsequent application for relief in equity. It is not sufficient that he has, since the trial, discovered evidence which might have changed the result and of which, until such discovery, he was wholly ignorant, or that he may now procure the attendance of some witness or procure some other means of proof which were not produced at the trial. He must, in either case, to entitle himself to relief, satisfy the court that his not discovering the evidence prior to the trial, or his not producing the witness or other means of proof at the trial, was not due to any want of diligence on his part, or on that of his attorneys, or other agents: McCollum v. Prewitt, 37 Ala. 573; Fisher v. Greene, 5 Col. 541; Palmer v. Bethard, 66 Ill. 529; Tallman v. Becker, 85 Ill. 183; Kirby v. Pascault, 53 Md. 531; Robb v. Halsey, 11 Smedes & M. 140; Vaughn v. Johnson, 9 N. J. Eq. 173; Stillwell v. Carpenter, 59 N. Y. 414; Wells v. Wall, 1 Or. 295; Henderson v. Mitchell, 1 Bail, Eq. 113; 21 Am. Dec. 526; Turley v. Taylor, 6 Baxt. 376; Akers v. Akers, 83 Va, 633; Hevener v. McClung, 22 W. Va. 81; Bloss v. Hull, 27 W. Va. 503; Freeman on Judgments, sec. 506.

Negligence in Not Attending the Trial.-It is also the duty of every litigant to ascertain when his case will be called for trial, and to be present thereat, if his presence is necessary. Every omission of this duty is negligence, and no relief in equity can be had from a judgment resulting therefrom. It is not sufficient that the party seeking relief was absent from the state at the time of the trial, or under some misapprehension with respect thereto, or had been led to believe that the trial would not take place, unless he gave to his business such attention as it deserved, and exercised a reasonable diligence to ascertain whether or not the belief under which he acted was well founded: Mastick v. Thorp, 29 Cal. 444; Combs v. Choven, 89 Ga. 179; Albro v. Dayton, 28 I11. 325; Bardonski v. Bardonski, 144 Ill. 284; White v. Cabal, 2 Swan, 550; Burnley v. Rice, 21 Tex. 171. If the party knows of the time of the trial, and has, or believes he has, a sufficient excuse for his absence, and he is represented by counsel, who permits the trial to proceed without objection, or who moves for a continuance on account of the absence of his client, and that the continuance is refused, no relief can be had in equity, for, in the one case, the going to trial is a result of the mistake or bad judgment of his attorney (Smith v. Lowry, 1 Johns. Ch. 320), and, in the other, the question of the propriety of proceeding to trial under the circumstances having been submitted to the trial court, its decision cannot be reviewed in equity: Cammann v. Traphagan, 1 N. J. Eq. 28.

Negligence or Mismanagement at the Trial.-If the judgment against which relief is sought might have been prevented by the exercise of proper diligence at the trial, equity will not interfere, as where the complainant himself did not attend the trial, and therefore failed to testify to facts within his knowledge, or to make proper suggestions respecting the cross-examination of the witnesses of his adversary: Ames v. Snider, 55 Ill. 498; or in some other respect did not make proper preparations for the trial: McCollum v. Prewitt, 37 Ala. 573; or, being sued as a garnishee, permitted Judgment to be entered against himself through his neglect in not answering interrogatories: Warren v. Copp, 48 La. Ann. 810; or failed to remember a fact wbicb would have constituted a complete defense to the action: Bailey v. Anderson, 6 Humph. 149; or did not exercise diligence in producing vouchers showing credits in his favor: Webster v. Hardisty, 28 Md. 692; or did not apply for leave to examine the books of his adversary where he knew that such examination was necessary: Hines v. Beers, 76 Ga. 9; or wholly failed, under the advice of his counsel, to offer eridence of material facts: Fentress v. Robins, N. C. Term Rep. 177; 7 Am. Dec. 704; or permitted important evidence to be received without objection: Galena etc. Ry. Co. v. Ennor, 165 Ill. 55.


Generally, when a party is present at the trial, or is represented by counsel, he must there pursue all the remedies necessary to insure him a full and complete hearing on the merits, and, if he finds himself embarrassed by the absence of witnesses, or by any other cause through which he fears he cannot safely proceed to trial, he should seek relief in the trial court by suggesting a continuance, or by resorting to any other remedy there available, and, failing to do so, he cannot obtain relief in equity. Hence, relief will not be granted be. cause of his inability at the time of the trial to procure an exemplified copy of a record, or the failure of the principal witness to recollect facts within his knowledge, such failure arising from serious pain and the use of opiates to alleviate it. "Accidents of this kind occasionally occur in the course of trial; but the plain remedy for such an embarrassment is an application to the court to postpone the trial or continue the case, as the circumstances may require. Applications of the kind, if well founded, are seldom or never refused; but if a party elect to proceed and take his chances of success, he cannot, it the verdict and judgment are against him, go into equity and claim to have the judgment enjoined": Crim v. Handley, 94 U. S. 659. If for any cause a party cannot safely enter upon the trial, he should seek a continuance, and if such cause is not known to him until the trial is in progress, then application should promptly be made to the trial court for time in which to supply the defect or to otherwise relieve the party from a contingency which has arisen and which he could not reasonably be expected to anticipate. Whether a continuance or other relief will be granted is a question for the decision of the trial court, and any errors which it may make must be corrected by motion for a new trial or by an appeal, and whether these reme dies are resorted to or not, cannot furnish a sufficient foundation for an injunction against the judgment: Ratliff v. Stretch, 130 Ind. 282; Canada v. Barksdale, 84 Va. 742. "In England and in most, if not all, of the American states, either through statute or through judicial action, courts of law have acquired, and constantly exercise, full power to grant new trials, whenever, from the wrongful acts or omissions of the successful party, or from accident or the mistake of the other party, or from error or misconduct of the judge or the jury, there has been a failure of justice. In other words, the powers of courts of law to set aside verdicts or judgments, are so ample as to meet all the requirements of equity and justice, and the special equit. able jurisdiction with respect to this matter has become obsolete in the very large majority of the states, if not in all of them": Pomeroy's Equity Jurisprudence, sec. 1365.

Negligence in Prosecuting Appeals. After a judgment is entered, if the Judgment debtor has a remedy by appeal to correct any errors there. in, and thereby to deprive it of the power to do him injustice, he must pursue that remedy, and his negligence in pursuing it must deprive courts of equity of the power to grant him aid, whether he altogether failed to appear because he had not examined the judgment, and did not know that it was for an improper sum: Anderson v. Oldham, 82 Tex. 228; or, undertaking to appeal, he or his counsel is guilty of error or negligence whereby the record is not perfected in due time, or 18 for some reason not adequate to fully present his cause on its merits: Augusta etc. Assn. F. McAndrew, 63 Ga. 490; Palmer v. Gardiner, 77 III. 143; Ruppertsberger v. Clark, 53 Md. 402; Miller v. Bernecker, 46 Mo. 194; Galbraith v. Barnard, 21 Or. 67.

Negligence of Attorneys and Other Agents. A complainant seeking relief from a judgment is chargeable with the negligence of his attorneys and other agents. This rule is a harsh one, because there seem to be no exceptions to it, though the agent chosen was apparently proper and skillful, and the principal himself did ev ything which he might reasonably be expected to do in the management of his cause to insure its full presentation upon its merits. Relief in equity cannot be had because of any act or neglect of the complainant's attorney in the management of the original cause, not involving actual fraud. The character of the act or neglect is not material. It may consist of eptire inattention to the business intrusted to him, of his failure to appear or to plead at the trial, of his misinforming bis client with respect to the time of the trial or to the advisability of his being present thereat, or to his procuring witnesses or other evidence, or of an error of judgment with respect to the pleadings, the evidence, or any other matter involved in the management of the cause. In all these cases no relief can be obtained in equity: Borland v. Thornton, 12 Cal. 440; Odell v. Mundy, 59 Ga. 641; Sasser v. Olliff, 91 Ga. 84; Schricker v. Field, 9 Iowa, 366; Darling v. Baltimore, 51 Md. 1; Chester 7. Apperson, 4 Heisk, 639; Wallace v. Richmond, 26 Gratt. 67; Ayres v. Morehead, 77 Va. 576; Hiles v. Mosher, 44 Wis. 601; Barhorst v. Armstrong, 42 Fed. Rep. 2; Bateman v. Willoe, 1 Schoales & L, 201.

The same rule applies when the agent is a public officer charged with the performance of an official duty, which he neglects, as where be is a city attorney, and fails to ascertain the existence of a cause of action in favor of the city: Darling F. Baltimore, 51 Md. 1; or is a county clerk, and does not disclose the service of process upon him against the county, and in consequence of which a judgment is entered against it by default: Knox Co. v. Harshman, 133 U. S. 153.

If a litigant authorizes another to employ an attorney for him, or to conduct other measures for the proposed defense of the action, and another attorney is not employed, or the other measures essential to the defense are not taken, no relief can be had, in the absence of actual fraud: Neville v. Pope, 95 N. C. 346; Sullivan v. Shell, 36 8. O. 578; 31 Am. St. Rep. 894.

Each member of a partnership is an agent therefor, and, if a judgment is entered against it which be might have prevented by the exercise of due diligence, all the members of the firm must suffer there from: Walker v. Kretsinger, 48 Ill. 502.

The negligence of an attorney or other agent may be so gross that the principal can sustain an action at law against him therefor, but this right of action may be without substantial value, owing to the in



solvency of the agent. This inadequacy of the legal remedy does not, however, result in any variation of the rule of equity that the neglect of an agent is chargeable to his principal, and he cannot obtain reliet from a judgment at law resulting from such neglect, or which might have been prevented by the exercise of proper care on the part of his attorney or other agent: Kern v. Strausberger, 71 Ill. 413; Rogers v. Parker, 1 Hughes, 148.

It has sometimes been insisted that an exception to the general rule, that a party cannot obtain relief from a judgment by resort to equity when he has been guilty of negligence on his part, arises when he has in his possession a receipt or release clearly showing that the Judgment against him was inequitable. This exception is founded upon the assumption that the evidence in his possession is of a “permanent and unerring nature to the points before in issue," and there are several decisions which seem to sustain this exception: Winthrop v. Lane, 3 Desaus. Eq. 324; Countess of Gainsborough v. Gifford, 2 P. Wms. 424. It has also been held that where the defendant, in his answer to a bill in equity to enjoin the collection of a judgment, admitted the equity of the bill, or, in other words, did not deny that the judgment obtained against him was unconscionable, relief would be granted, although the complainant had been guilty of negligence in the prosecution of his defense in the original action: Vanlew v. Bohannan, 4 Rand. 537. This decision, as well as the decisions permitting the granting of relief against a judgment to a party who was able to produce a receipt for the debt or a release of the cause of action, do not seem to be maintainable upon principle. Of course, the production of the receipt or release makes the equity of the complainant less disputable, and perhaps shows that there ought to be some exception to the general rule, that a party will not be relieved from a judgment which, by the exercise of diligence he might have prevented. The true rule upon the subject, we think, is that the loss of a receipt or other paper and its subsequent recovery may entitle a party to relief, when aided by other circumstances to some extent at least excusing his failure to present it at the trial: Gold v. Bailey, 44 Ill. 491; 92 Am. Dec. 190; Wilday v. McConnell, 63 Ill. 278. Such was the very remarkable case of Ahl v. Ahl, 71 Md. 555. Before the case came on for trial, counsel were shown an acknowledgment in writing purporting to be made in 1877, and which, if then made, was inconsistent with the existence and loss of an agreement upon which their client relied. Notwithstanding his protestations, one of the counsel withdrew from the case, and the other refused to defend upon the theory of the existence and loss of the paper, and merely interposed a technical defense without success. The client afterward succeeded in finding the lost paper, and in showing that the acknowledgment which induced his counsel to abandon his defense had been made in 1876, instead of 1877, and that the figures "1876" therein had been altered to "1877" with such neatness and care that such alteration did not attract the attention of an ordinary observer.

Equitable Defense8.—There are defenses which may be interposed to an action at law which the defendant therein may, if he chooses, reserve for the action of some other tribunal. Thus, if a party sued at law has a defense of an equitable character of which a court of law may take cognizance, he need not, in general, present his equitable defenses, but may allow judgment by default to be taken against him, and may afterward assert his equitable defenses for the purpose of obtaining relief against the judgment: Morrison v. Hart, 2 Bibb, 4; 4 Am. Dec. 603; Hempstead v. Watkins, 6 Ark. 317; 42 Am. Dec. 696; Fannin v. Thomasson, 45 Ga. 533; Clay v. Fry, 3 Bibb. 248; 6 Am. Dec. 654. A recovery in an action in ejectment, in which nothing but the legal title is issue, is no bar to any proceedings in chancery, founded upon the equitable title: Allen v. Stephanus, 18 Tex, 658; Brown y. Wyncoop, 2 Blackf. 230.

Want of Diligence Brought About by Adverse Party.—The rule that a party cannot in equity obtain relief from a judgment where he has been guilty of want of diligence is subject to the further exception that such want of diligence may be excused when it is the result of the act or fraud of his adversary, or of the latter's attorneys or other authorized agents. If, du the progress of the cause, the parties thereto compromise their differences, one paying to the other the amount agreed upon, neither can reasonably expect that the other will, notwithstanding such settlement and payment, proceed with the cause; and his so proceeding to the entry of a judgment is an actual fraud, against which relief may be had in equity, though the judgment might have been prevented by filing a supplemental plea or otherwise calling the attention of the court to the fact that the cause had been settled between the parties: Gates v. Steele, 58 Conn. 316; 18 Am. St. Rep. 268; Greenwaldt v. May, 127 Ind. 511; 22 Am. St. Rep. GCO. So, though there has been no actual settlement of the controversy, one of the parties litigant inay fail to present his claim or de fense because of bis reliance upon some agreement or understanding between himself and his adversary, which, if observed, would have rendered such presentation unnecessary; and it may be said generally that whenever a litigant or his attorney, by his act or agreement, causes his adversary to relax the diligence which might otherwise be expected of him such relaxatiou cannot be urged as a sufficient reason for denying relief from a judgment obtained thereby: Freeman on Judgments, sec. 492; California etc. Co. v. Porter, 68 Cal. 369; Chambers v. Robbins, 28 Conn. 552; Stone v. Lewman, 28 Ind. 97; Johnson v. Unversaw, 30 Ind. 435; Nealis v. Dicks, 72 Ind. 374; Baker v. Redd, 44 Iowa, 179; Broaddus v. Broaddus, 3 Dana, 536; Kent v. Ricards, 2 Md. Ch.. 392; Newman v. Meeks, Smedes & M. Ch. 331; Keeler v. Elston, 22 Neh, 310; Cadwallader v. McClay, 37 Neb. 359; 40 Am. St. Rep. 496; Holland v. Trotter, 22 Gratt. 136; Dandridge v. Harris, 1 Wash. (Va.) 326; 1 Am. Dec. 463. There have been many instances, also, in which a defendant has been assured that he need not appear, that the action against him would be dismissed, and that he was made a formal party, and that the judgment against him could not operate to his injury, and he has been thereby caused to relax the diligence which he would otherwise have exercised, and his adversary, taking advantage of this lack of diligence, has caused judgment to be entered against him. In such cases relief has generally been granted: Norman v. Burns, 67 Ala. 248; McLeran v. McNamara, 55 Cal. 508; Gates 5. Steele, 58 Conn. 316; 18 Am. St. Rep. 268; Markham v. Angier, 57 Ga. 43; Stone v. Lewman, 28 Ind. 97; Johnson v. Unversaw, 30 Ind. 435; Broaddus v. Broaddus, 3 Dana, 536; Keeler v. Elston, 22 Neb. 810; Jarman v. Saunders, 64 N. C. 367. The principle that taking

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