The petition for a new trial, when subjected to the test of the principles and rulings announced in the following cases, cannot be sustained; and the demurrer thereto should have been.— White v. Ryan & Martin, 31 Ala. 400; Shields v. Burns, 31 Ala. 535; Elliott v. Cook, 33 Ala. 490; Stewart v. Williams, 33 Ala. 492. If there was any accident, mistake, surprise, or fraud, which would authorize the granting a new trial, still the appellee does not show that he was toithout fault. If he made any mistake, it was one of law, and not of fact; and he states facts in the petition which should have put him on his guard, and made him diligent in making inquiry as to the pendency of the suit, and in preparing for its defense.
2. The court below allowed the appellee to amend his petition. It had the authority to do so, and we can perceive no error in the action of the court in this respect. Like all other legal proceedings, it is within the power of the court to allow an amendment of them before trial, unless there is some law or rule of practice prohibiting; and we know of none which inhibits it in such a case as this. — Vide cases cited above.
For the error pointed out, the judgment must be reversed, and the cause remanded for further proceedings.