Franklin Dibble, Appellant, vs. Joseph Truluck and James J. Holland, Sheriff, &c., Appellees, 12 Fla. 185

By the Court. RANDALL, C. J. Tins is a suit by Bill in Equity to obtain ;an injunction restraining Joseph Trulue.k from enforcing a.judg.xaent and execution in his favor against the. appellant, and to restrain and prohibit Holland, ¡Sheriff of Duval county, from enforcing such execution, and for general relief.

The bill was filed in the Circuit Court for Duval county on the 5th day of September, 1868, and alleges that on or about the 10th day of October, 1S66, Joseph Truluck obtained a judgment, upon the verdict of a jury, against the complainant, for three hundred dollars, in an action of replevin to recover the possession of a mule; that at the trial, the complainant (defendant in the suit) proved that he was the legal owner of the mule, having purchased the same of the United States government,, the government having acquired a title thereto by capture during the war as prize or booty, and that no attempt was made to show that it had been recaptured. ft is further alleged that the party Truluck ivas the person from whom the mule was captured, while he was domiciled in the “ Confederate States,” and adhered to the Confederate gov eminent, and that ho based his right of recovery in the replevin suit upon his ownership before the capture.

That upon the trial the Judge instructed the jury that if they found from the evidence that the mule in question was prize or booty of war, then the defendant was entitled to a. verdict in Ms favor; but that if the jury found from the evidence that the mule in question was the property of the plaintiff at the time-the suit was commenced, then the plaintiff was entitled to a verdict in his favor. That the jury disregarded ¿he evidence in the cause, and the charge of the Judge, and rendered a verdict in favor of the plaintiff Truluck, and against the defendant Dibble, for three hundred dollars.

That during the same term the defendant applied, for a now trial, on the grounds that “ the verdict was contrary to the evidence, and was excessive, unreasonable, and exorbitant.” “ That the Judge overruled the motion, on the ground that he had not taken down the evidence, and did not know what it was, and that it was not his duty to know the evidence, &nd that he could not take any notice of the evidence, or assame to say what the evidence was, unless the counsel of the respective parties to the said action could agree upon the same.” That the counsel could not agree upon the evidence, and that in consequence of the said Judge’s omission and neglect of Ms duty to take down the evidence, or to pay such attention to it as-would enable him to know what it was, complainant was deprived of a new trial, and was precluded from submitting to the Supreme Court, by appeal, the legal questions whether or riot the verdict was contrary to the evidence in the case; that lie did not and could not by himself, or through counsel, make up a Billrof Exceptions including the evidence, and procure the same to be signed by three bystanders, as provided by statute, because bystanders could not be procured for that purpose.

That an appeal was taken to the Supreme Court “upon the question of the duty of the Judge to know the evidence,” and the Supreme Court distinctly and pointedly decided that it was the duty of the Judge of the Circuit Court to know what the evidence was, by taking minutes or paying attention to it, so that he could correctly charge the jury and correctly decide upon a motion for a new trial; and because the evidence was not before them in consequence of the omission of the Judge, the Court could not pass upon the correctness of the verdict.

That the complainant had a clear legal and conscientious title to the property, and that without any fault, negligence, or want of care and diligence on Ms part, he has been deprived of his rights and his legal title; “and that by tbe failure, omission, and disregard of the said Judge to do Ms duty as decided by the Supreme Court, he is in danger of being grossly wronged and injured, and has been deprived of Ms right to have the legal title to his property judicially -determined and decided and “ that from the neglect and omission or failure of the said Judge to perform Ms duty, a fraud has been perpetrated upon his rights;” and that the defendant Holland, Sheriff of Buval county, has levied upon his property to satisfy an execution. issued upon such judgment; wherefore the complainant prays iiu injunction, as before stated.

Upon the tiling of this Bill the complainant moved lor a preliminary writ of injunction, and the Judge of the Circuit denied the motion ; and from the order denying a preliminary injunction the complainant appeals. it is unnecessary to consider whether the complainant had a valid defense in the. replevin suit, or how clear his case may have been, unless we find that lie is driven into the Court of Chancery by some legal necessity; but assuming that ho had such defense, we must next ascertain whether by his Bill he is entitled to this resort. , “Courts of Equity will grant relief against judgments at law when the defense could not at the t ime or under the circumstances be made available at law without, any hushes of the party;” and also, “ when a party is taken by surprise, and could not by reasonable diligence have protected himself from the consequeue.es of such surprise; or when the fort* constituting such surprise arc tantamount to a. fraud.

Equity will grant relief.” Equity will relieve in many eases against- a judgment which is dearly against conscience; and against the. conseqjiences of fraud and circumvention; and where tins party lias been misled by the 0]>]losing party or his privies; and in divers other oiicumstane.es, as urged by the complainant's counsel, and sustained by authorities cited by him. But we must first ascertain whether the party praying such relief has either exhausted his remedy, or been deprived of it in the court oflaw by fraud, or by impediments thrown in his way by other parties, and without laches of his own.

When this case was before this Court on a former occasion, the- .Judge who delivered, the opinion pointed out very dearly (XI. Fla. R., 137, 138, 139) the practice proper to be observed in order to obtain a proper review of the case upon its merits. (Bee- also Thompson’s Dig., 35J, and Laws of 1852-3, p. TOO.) The party' desiring to review a judgment after verdict, is authorized and required to make his motion for a new trial in writing, stating,the reasons therefor, and obtain the. deeipion of the Judge thereon.

So far this requirement was pursued, and the Judge, refused'to grant a new trial upon the grounds stated in the motion. The parly was then authorized and required to prepare, his case and exceptions, and on notice to the other party, aslc the Judge to sign the same. It’ the J ndge then refuses to sign or take notice of the ease, three bystanders may be {•■ailed upon to sign the Same, and attest the fact of such presentation and refusal, and then the hill is complete, and may be filed and ,become a part of the record.

Jt appears by this biLl that the complainant stopped short upon the refusal to grant a new trial, and made n.o 'attempt to prepare and present his bill of exceptions, but appealed from the opinion of the Judge “that it was not his duty to keep minutes, or to know what the evidence was,” which he. liad just listened to. The Judge was under no obligation to furnish counsel with minutes of testimony, but he did know what proceedings had been had in his presence, otherwise he. .did not act intelligently.

His real or pretended ignorance of the facts, however, did not prevent the. party from preparing and perfecting his bill of exceptions, and tendering it to the Judge for signature. No fraud was perpetrated, lie was not- hinderqd or .prevented from exercising due diligence, was not misled, nor was the conduct of the Judge .such as to cause a legal “.surprise,” whatever other emotion may have been excited by it.

The omission, therefore, of the complainant to pursue his remedy at law, which was complete, is not excused by anything that transpired, and this omission alone prevented his,accomplishing by an appeal in that case precisely what he seeks .in .the prosecution of this bill. We. are therefore of opinion that the order appealed from should stand.