Giles v. Austin

The tendency of the administration of justice is to relieve from forfeitures. Equity has always sought to mitigate the harshness and severity of the common law. The undenied statements on which this application is addressed to the court, the magnitude of the forfeiture attempted to be enforced, the importance of the interests at stake, the *544relative characters, capacities, and intentions of the parties, and their respective claims to the equitable consideration of the court, are all matters that are presented in this application.

If, as it appears to be, this case was in part decided at the general term adversely to the plaintiff, upon a point not raised or discussed there, a question as to the equities of his mode of applying to the court for relief from the forfeiture ; then, it appears to me, that he should have an opportunity of presenting the additional evidence of his good faith and the equities of his position, as urged by this application. When a suitor of slender capacity, and advanced in years, seeks to be relieved from a most onerous forfeiture, upon such terms as to the court may seem equitable, and as it may impose, unless he has taken a position or performed acts, depriving himself of all claim to equitable consideration, the court will be disposed to hear his application and in all proper cases extend the relief prayed upon suitable terms.

The plaintiff sought relief by bill in equity, instead of by motion to set up his equities by a supplemental answer ; and as the question respecting the fairness and. propriety of his course in this respect was not raised or discussed at the general term, but was presented in its decision as a prominent ground for debarring him of his relief, and as he now applies upon verified statements that are uncontradicted, alleging that upon a new trial he can'show that he acted in good faith and fairness, and upon the advice of able counsel, and upon what they believed to be the settled practice of this court, it is but just and in accordance with equity that he should have such an opportunity. When he places himself in the hands of the court to be relieved of the heavy forfeiture consequent upon his errors, or his infirmities and mistakes, and upon their own terms as to what he shall be compelled in equity to do as a *545condition for this relief, he should have an opportunity by proofs and arguments to present his position, and protect it from a new and undiscussed difficulty.

There can be no injustice or wrong result to the defendant from this course. The court can relieve him from all loss that may occur from costs or delay, in case they relieve from the forfeiture.

There are substantial reasons why a reargument should not be ordered, and it is a sufficient one, that the plaintiff has a remedy by appeal; but the ordering of a new trial instead of dismissing the complaint after reversing the judgment, seems more in accordance with usage, and in this case under the circumstances shown, especially, a just and proper course to be pursued.

I think the order of the general term should be amended by granting a new trial, instead of dismissing the complaint.

(Concurring in denying the motion for a reargument, but dissenting from the decision on the motion 'to aménd.)—This is a motion for leave to reargue an appeal which was heard and determined at general term, some time since, by three judges, of whom only one is now sitting upon the hear- „ ing of this motion. Eo new fact is alleged to have been discovered, nor any important decision is claimed to have been overlooked. Indeed, 1 have been unable to find in the points or argument of the learned counsel who makes the motion, any reason in support of his client’s case which was not or ought not to have been presented to the court upon the hearing of the appeal. This motion, therefore, is simply, in effect, an appeal from a judicial decision of three judges, sitting at general term, to one only, of them, and two other judges of the same court, at a different general term ; and for that of other considerations, the motion *546should be denied. Even in appellate courts of dernier resort which are composed of the same judges at each succeeding term, motions for leave to reargue appeals-are seldom granted, and never unless for very strong reasons, suchas that a material fact has been overlooked or misconstrued by the court, or some recent authoritative decision, not cited upon the argument, has been found. If, then, courts of ultimate appellate jurisdiction, thus composed, are chary in regard to motions of this character, with still greater reason ought this court to refuse to entertain them, except, possibly, in extraordinary instances. For, aside from the general rule of all appellate courts, above adverted to, the granting by three of the six judges of -this court of a motion to reargue an appeal which had already been heard and judicially decided by a general term composed wholly or in part of other judges, would be not only discourteous in the extreme to those not then sitting, whose opinions are sought to be reviewed, but. unusual and highly indecorous. Indeed, if such a practice were to obtain and become general, the inconvenience resulting' from it, both to the court and its counsellors, would become unbearable. We had better adhere to the maxim stare decisis.

Besides, if the plaintiff is aggrieved by the final judgment which has been rendered against him at gen-, eral term, he has a full and perfect remedy without resorting to a motion like this. The court of appeals, it may safely be assumed, will reverse the judgment and award a new trial if that ought to be done.-

The motion should be denied, with costs.-