59 Ala. 253 | Ala. | 1877
The bill is filed to review and reverse a decree rendered upon a former bill, for errors alleged to be apparent on its face, and also to impeach and set it aside for fraud. On presentation of the bill, the chancellor directed a suspension of the proceedings on the decree, until the further order of the court, on the complainants executing bond with surety in conformity to the statute.—Code of 1876, § 3842. The bond having been executed, answers were filed by the material defendants, who submitted a motion
The general rule of practice under our statute, or rather of Avhieh the statute is declaratory, is that on the coming in of the ansAver, on motion, an injunction may be dissolved, if the equity of the bill is fully and completely denied; or AA'hether there is, or not, a denial of the allegations of the bill, if it is Avanting in equity, the injunction may be dissolved. Whether this rule is of any application to a restraining order entered by the chancellor on a bill of revieAA', Ave do not propose now to decide. The rule of practice of force Avhen the chancellor rendered the decree dismissing the bill, in effect prohibited a defendant, Avho had interposed a demurrer assailing the equity of the bill, from moving to dismiss until the cause Avas ready for final hearing.—Rule 71, R. C. p. 833; Calhoun v. Powell, 42 Ala. 645. The rule Avas intended and deemed probably as a sequence of another rule, requiring all demurrers Avhether incorporated in, or separate from the ansAver, to be disposed of on calling the cause, without aAAraiting a readiness for a hearing on the proofs. Prom the demurrer in an early stage of the cause, the defendant could obtain all the benefits of a motion to dismiss, and if the grounds on AA'hich it rests, could be obviated by amendment, the complainant Avoukt be apprised of its necessity, and a hearing on the merits expedited. The chancellor should not have dismissed the bill for AArant of equity. The dismissal Avas in vacation, Avithout affording the complainants the opportunity of amendment. If there had been a hearing on demurrer, or on a direct motion to dismiss for Avant of equity, it Avould not have been the duty of the chancellor, on sustaining the one, or the other, to have retained the cause, and tendered the complainants the liberty of amendment. The right of amendment is secured by the statutes, but it is a right Avhieh must be claimed by the party entitled to it, and the chancellor when there is opportunity of claiming it, can be put in error only by a denial of it. But when there is not a hearing on demurrer to the bill, or on a motion to dismiss for Avant of equit)*-, and the equity of the bill is draAvn in question only incidentally, and the decree is rendered in
As a bill of review strictly, we do not think the bill can be maintained. The errors complained of, are errors of judgment revisible on error or appeal, but not by bill of review. P. & M. Bank v. Dundas, 10 Ala. 661; MoDougald v. Dougherty, 39 Ala. 409. Of these errors, the complainants can not complain, if as the decree recites, it was rendered by their consent. But as a bill to impeach the decree for fraud, it can, and. should have been sustained. Its averments are (and they are substantially admitted by the answers), that the solicitor appearing for the complainants, and consenting to the decree, had never been retained by them, and was wholly without authority in the premises. That of his appearance and consent to the decree, they were not informed until after the close of the term, at which the decree was rendered, and -that he is not of ability to respond in damages to them for the inj ury which may result. The principle the case involves, and on which the equity of the bill may be rested, is thus stated in Crafts v. Dexter, 8 Ala. 770: “ When by an unauthorized act of an officer of court, a judgment is improperly rendered against one, without his knowledge or consent, he may be relieved in chancery, though the plaintiff in the judgment was not privy to the act.”—See, also, Griggs v. Gear, •3 Gilman, 2. Without comment on the facts stated, we proceed to inquire to what extent the complainants are aggrieved by the decree. It is not enough that there has been fraud or official misconduct, injury must have resulted from it. Fraud without damage, is not a cause of action at law, or a ground of relief in equity. It is only when the two meet and concur, that courts intervene.— Overdeer & Aughinbaugh v. Wiley, Banks & Co., 30 Ala. 709.
The stipulation in the note, that it could be paid or discharged in cotton at twenty cents per pound, was for the benefit of the complainants. If they sought to avail themselves of it, they were bound to show an ability and willingness to deliver the cotton at the maturity of the note, of which the payee had notice^ or the note became an absolute promise for the payment of the money expressed.—1 Brick. Dig. 255, § 35. The pendency of the garnishment at law, did not relieve them from the necessity of tendering payment in cotton at the maturity of the note, if they desired to avail •themselves of the stipulation. They have no ground of complaint therefor, because by'the decree they are charged with •the payment of the money expressed in the note. The decree
Let the decree be reversed and the cause remanded.
