Year: 1861




Thamas McRaney, ct. al.


VS.. 91l2
John Coulter President, &c.


This was a bill fled in the Chancery
Court of Covington county, for a new trial
at law, which was granted, and the defen-
dants appealed.


The material facts alleged in the bill
and proved are substantially these; the ap-
pelllee brought suit against the appellants
in the Circuit Court of said county on pro-
missory note. The presiding Judge of the
district, being disqualified to sit in the
cause, trial was had before a special
Judge, selected as the statute directs, end
verdict and judgment were rendered for
the appellants. A motion was made for
a new trial. at the hearing of which the
special Judge presided. The motion was
sustained and the decision announced
from the bench. Immediately thereafter
the special Judge withdrew without hav-
ing made any entry, memorandum or
minute upon the motion docket, and
without having given any instruction to
the Clerk in relation to the subject. Then
the Clerk was employed in making up the
minutes, in copying the orders from the
motion docket he observed that the ward
sustained" was written under or opposite
the motion, on the docket, and knowing
that the word was in the hand writing OF
the presiding Judge he called his atten-
ton to it. The Judge recognizing the
ward to be in his handwring was unable
to state whether the special Judge had
requested or authorized him to make the
minute or not And the Clerk not know
| ing whether the motion for a new trial
was granted or not made no entry in re
lation to it upon the minutes of the Court
! The bill contains no allegation, nor wa:
there any evidence to show, that the ap
pelle in person or by his counsel was pre-
sented in Court when the minutes were
read or that he caused them to be inspect
ed at any time during the term.


The only question in the case is whe
ther the Court did not err in granting th'
.relief prayed for in the bill.


If it were conceded that the facts abov,
stated made out case, in which accord
ing to the principles of equity, relic
should be granted, it is nevertheless evi
dent the appellee did not stand in al
attitude in which he could claim the assis
tance of Court of Chancery.


In bills of this character the rule o
diligence is, strictly applied. Hence il
the case before US, the eappellee was bounC
to prove, that the neglect or accidental
| omission of the Clerk to enter the ludg
ment on the motion for a new trial, oc
cured without laches on his part, anC
that, by the use of proper diligence, the
neglect, or omission could not have beer
remedied or corrected and thus have pre-
vented the injury resulting therefrom.-
| But instead of being watchful and dill
| gent he relied upon the presumption tha
| the Clerk would do his duty. 1t is evi
dent that by an inspection of the min
utes, the omission might have, been per
ceived, or if the appellee or his counse
.had been present in Court when the min
utes of that day were read, the omission
or neglect of the Clerk whether acciden
tai or designed, to enter thereon the judg
ment on the motion for new trial, would
doubtless have been discovered, and it il
clear that if it had, then, been perceived
the error might have been corrected.


The record contains no proof to thi
effect, in fact there is no allegation. il
the bill, which would, if such proof haC
been offered, have rendered its introduc
ton proper.


Upon this state of facts It is not to b
doubted that the appellee was in default
He failed to use the diligence, whicl
upon we'll settled principles, was essentia
to entitle him to the relief which wa
granted in the Court below. We there
fore reverse the decree and order the bill
to be dismissed. SMITH.