[The appellant filed a motion for a re-liearing herein, upon which motion the following opinion was delivered.]
Behnett, J.This is a motion for a re-hearing of the case, made by the appellant, Kent. The facts will be found stated in the above; opinion, when it was decided by this court, Bowen, J. writing the opinion.
The motion for a re-hearing is based upon the words of the opinion, as follows: “We confess we do not exactly understand" why or how the learned judge, sitting as a jury, found the sunn of ninety-six dollars principal, to bo due, there being no plea. of payment or set off; for, unless his judgment was founded upon the note tor one hundred and four dollars and ninety-three cents, filed with the justice, the whole matter was coram non j utilice, and the suit should have been dismissed;” together-with that part of the opinion of the court which relatestto the-fact as to whether the cause of action was filed with the justice • of the peace before summons issued.
The attorney for appellant, Kent, insisting that, oven if the note was filed before the justice of the peace, when the case came before the circuit court, it was a trial ele :novo, and the paper writing as attached to the transcript was not a note.
The general rule is, that a re-hearing will not be had, in any case, when substantial justice has been done between the parties, or when the party seeking a re-hearing has not been injured. When the real merits of the controversy has been reached, it would be unjust to reverse it for any merely technical cause. Courts should endeavor to do substantial,' rather than technical justice. They aim to take a broad, comprehensive and equitable view of the rights of the litigants,, and to guide them to what is, on the whole, best for them, evert.-1 hough, strictly speaking, they may surrender a right.
In 3 Waterman and Graham on New Trials, 1356, we find the following words: “Notwithstanding, then, a party may solicit the court to exercise, its discretionary power in his behalf, under circumstances entitling him to judicial aid, it wilt not, as a matter of course, grant his petition; but will first inquire whether he would be benefited by such interference. A theoretical or abstract right, merely, will not avail. The time-of judges, witnesses and juries, the delay of other important business, and the public as well as private expense, all forbid', that courts should he occupied to no tangible purpose. It must see that good will result to the party seeking its aid, or;, at least, inay result if the prayer he granted.”
In the ease before us there can be no doubt but that the appellant., Kent, is owing the appellee, in amount, about one hundred dollars. The court below, which rendered the judgment, said it had jurisdiction in the ease. This court has also held it had, and now a re-hearing is asked for, simply on the ground that the judgment was not for $104 ; it, consequently, could not have been under on the note. The judgment gendered was for $90, a clifForenee of only $8 98. By what parity of reasoning the amount was arrived at, by the ■court, we may be unable to discern, yet the amount is so trifling, and it being in favor of the appellant, were we to grant a re-hearing on these grounds, we should be encouraging, rather than discouraging, petty strifes, which can in no •sense be profitable. We think the record sufficiently clear, and explicit enough, to protect the appellant against any other suit that may be brought on the same cause of action. Whether •the judgment should have been for a few dollars, more or less, •substantial justice has been done.
But the counsel for appellants insists that he was so confident that the court below had erred in its judgment of the ease, and was so certain that this judgment would be reversed, that he did not interpose an equitable defense to the claim, which he might have availed himself of. .This, of course, cannot govern us here. If an attorney neglects to make a defense upon merits, and relies upon technicalities to gain his suit and protect his client’s interest, it is a matter between those parties. The case appears before us on the record. What might have been done and what was done are two different propositions. The presumptions are always in favor of the record. It is upon this we are trying and determining the case at bar. We ;are unable to find such error, either in the proceedings of the •court below, or the judgment of this court, as would warrant ns granting a re-hearing in the case.
Motion for a re-hearing is denied with costs.