BRICKELL, C. J.—
The bill is filed for the correction of errors committed by the Court of Probate, on the final settlement of a guardianship. It is not averred that by accident, mistake, surprise, or fraud, or by any act of the guardian, the ward, now complaining, could not have had in the Court •of Probate, the full benefit of every fact now relied on as a ground of equitable interference. On the contrary, it is averred these facts were introduced in evidence, and the *413court exercising its proper jurisdiction, adjudged they were insufficient to charge the guardian for moneys he had loaned, without taking security for their repayment, which were eventually lost. It is apparent the court erred, and it is to be regretted that any court should have fallen into such gross error, working such grievous injury. Irregularities injudicial proceedings, or the errors of courts of competent jurisdiction, can not create an equity, which will justify the interference of a court of equity.—High on Inj. § 130. Judgments at law, sentences of courts of exclusive jurisdiction, or decrees of courts of jurisdiction concurrent with that of a court of equity, are of the same finality and conclusiveness in equity, as at law. Injustice may have been done—the court may have misconceived or misapplied the law—the jury may have erred in judging, or disregarded the facts, a court of equity can not intervene merely to revise and correct the error. In Duckworth v. Duckworth, 35 Ala. 73, it was said, relief being sought in equity, against a decree of the Cohrt of Probate: “ No rule is better established, than that a court of chancery will not relieve in regard to a matter as to which the complainant could have had redress in a previous litigation, unless he was prevented from obtaining it, by accident, fraud, or the act of the opposite party, umnixed with fault or negligence on his part.” In Watts v. Gayle, 20 Ala. 825, it was said by Goldthwaite, J.: “ The rule allowing parties to appeal to chancery against-a judgment in another court is of great strictness and inflexibility, and it is necessary that it should be so, as otherwise the jurisdiction of that court would supplant that of the other tribunals.” There is no part of its acknowledged jurisdiction, a court of equity has so cautiously and sparingly exercised, as that of interference with judgments at law, or the sentences and decrees of other tribunals of competent jurisdiction, restraining their execution, or reopening the litigation they involved. The conscience of the court may be satisfied that injustice has been done—that the judgment or decree has not declared and enforced, but has defeated the right—the unvarying condition precedent to its interference, is, that it must clearly appear, the wrong occurred without faxdt or negligence on the part of the party complaining. Quieting litigation, silencing controversies, in the policy of that court is of more importance, than that justice maybe done in every case.—Bateman v. Willor, 1 Sch. & Lef. 204.
/^The argument of counsel seems to admit that the bill does not present a case within the original jurisdiction of a court *414of equity, but it is insisted that it may be supported as a bill for the correction of errors of law or fact occurring in a settlement in the court of probate under the statute.—(R. C. §§ 2274 and 2451.) These statutes do not authorize the interference of a court of equity, unless the party complaining, shows that the error, whether it be of law or of fact, of which he complains, occurred without fault or neglect on his part. The statute may enlarge the jurisdiction of a court of equity, authorizing it to intervene for the correction of errors at law, and may dispense with the inflexible rule, on which the original jurisdiction of a court of equity depends, that there must have been fraud, or accident, or surprise, or the intervention of the act of the opposite party, preventing the party complaining from obtaining redress in the previous litigation. While dispensing with these, it does not dispense with the other condition that the party seeking to reopen the decrees of the court of probate, shall show that the error of which he complains occurred without his fault or negligence.— Otis v. Dargan, 53 Ala. 178" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/otis-v-dargan-6509117?utm_source=webapp" opinion_id="6509117">53 Ala. 178; Boswell v. Townsend, 57 Ala. 308" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/boswell-v-townsend-6509661?utm_source=webapp" opinion_id="6509661">57 Ala. 308. His want of diligence, is as fatal to any claim for equitable relief, under the statute, as under the rule defining' the original jurisdiction of a court of equity. The bill affirmatively discloses, that on the final settlement in the court of probate, the complainant was represented by a guardian ad litem, who insisted the guardian should be charged with the moneys he had loaned without taking security. Every fact stated in the bill was shown-to the court of probate, and the court improperly adjudged the guardian should not be charged. No exception was reserved to the ruling of the court, but there was full acquiescence in, and submission to the judgment rendered. If there had been full knowledge of the facts, and the guardian ad litem had abstained from presenting them for the consideration of the court, not being hindered by the act of the opposite party, it would scarcely be said, the bill presented a case for relief under the statute—that the complainant could be acquitted of fault or neglect. A party who has full opportunity, and yet from mere inattention or supineness, does not present his rights for adjudication to a proper tribunal, having jurisdiction of litigation involving them, closes the door to relief in equity. Can he be acquitted of fault or neglect, if he appears, presents his cause, and submits to an adverse decision, not taking the steps necessary for its revision in an appellate tribunal ? What relieves him from the influence and operation of the maxim, consensics tollit errorem? Of what avail is his appearance, and entering into *415the litigation ? If an appeal had been prosecuted from the decree, and every fact had been spread upon the record, which appears on the face of the bill, and affirmance of the decree, would have been inevitable, because no exception was reserved to the decision of the court. Was there not fault or negligence in the failure to reserve an exception; and how can it be said, the party failing to reserve it is free from fault or neglect. Fault and neglect is imputable, unless he intended submission to the judgment of the court; and if he submitted, that is as fatal as a want of diligence to any claim to equitable relief. We can not suppose the statute was intended to embrace a case of this character; but cases in which parties had not the opportunity of being heard in the court of probate, or of presenting their rights fully to that court. But a party who has had his day in court, has fully presented his evidence, and on it the court has pronounced judgment, if error intervenes must correct it on appeal. A construction of the statute, which would give it a largor operation, would practically abrogate the statute regulating appeals rendered by the court of probate on final settlements of executors or administrators, limited to six months, and Avould convert the equitable into an appellate jurisdiction. The statute limiting appeals from decrees of courts of probate, and the statutes which confer this equitable remedy, are parts •of a common system, and that construction can not be just which Avould render them inharmonious in operation, or which Avould make each, serve the same purpose. An appeal is limited to six months—the equitable remedy to two years. Infants, married Avomen, nor persons non compos mentis, are excepted from the limitation of appeals. These persons are excepted from the limitation of the equitable remedy, and are alloAved two years after relief from disability to pursue it. If the appeal, and the bill in equity Avere regarded as concurrent remedies, it Avas useless to have limited appeals to six months, or to have subjected to the operation of the limitation, persons sui juris, excepted from the operation of the limitation $>f the equitable'remedy. No party can invoke the equitable remedy Avho has had full opportunity to redress the error of which he complains, on appeal, and has by his own negligence lost the opportunity, and forfeited the right of appeal. The chancellor properly sustained the demurrer to the bill, and the decree is affirmed.
STONE, J.,
(dissenting.)—In the case of Mack v. Cundiff, 6 Por. 24, decided more than forty years ago, this court said *416that “ chancery will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the-defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defence, or, unless he was prevented from availing himself' of it as a defence by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” In French v. Garner, 7 Por. 549, the same doctrine was affirmed; and it has been reiterated by this court so often, in a series of decisions running all through the judicial history of this State, that I deem it unnecessary to cite them.—See 1 Brick. Dig. 666, § 376.
This principle did not originate in this court. It was borrowed from the English Chancery system, and was copied from a decree of Chancellor Kent, who, like our predecessors, found the doctrine ready moulded and established for his use.—See Foster v. Wood, 6 Johns. Ch. 87" court="None" date_filed="1822-04-15" href="https://app.midpage.ai/document/foster-v-wood-5550509?utm_source=webapp" opinion_id="5550509">6 Johns. Ch. 87; Lansing v. Eddy, 1 id. 51. It did not pertain to the original, inherent powers of the court; but was engrafted upon its jurisdiction upon that principle, now long recognized, which is included in the general phrase, the prevention of irreparable mischief. Hence, to bring himself within its remedial influence, the party invoking its exercise must show, in fact, that he has a legal right, that he has failed to obtain it by no fault or neglect on his part, and that without the aid of the Chancery Court he is without remedy. The slightest inattention, or want of active diligence, which, if timely exercised, would have averted the wrong, has, in such cases,, been always held to be fatal to the relief prayed; because, such inattention or want of active diligence disproved the great underlying averment, that the injury done Avas without fault or neglect on the part of complainant. The jurisdiction being exceptional, the party asking its exercise must bring himself clearly within its scope.
This conservative, healing principle, so necessary for the prevention of wrongs which sometimes, through fraud of parties, or accident AAÚthout fault or neglect, l}ave found expression in the solemn judgments of the purest and most elevated judicial minds, has been applied for their correction to the judgments of courts of the highest, as Avell as the loAvest jurisdiction, Avhen no other mode of redress could be administered. Judicial necessity gave it its birth, and it defines the boundaries of its domain.
The principles we have declared above Avere made a part of the statute laAV of this State, and the common law courts *417were clothed with a qualified power to exercise them, in two of the most numerous classes of cases in which their exercise might become necessary.—See Code of 1852, section 2406 et seq.; Code of 1876, section 3159 et seq. This statutory remedy, like the equity principles above, only aids parties who have been prevented from making their defense, by surprise, accident, mistake or fraud, without fault on their part. Under this statute, it has been held, and rightly so, that a party, to avail himself of. its benefits, must repel all imputation of fault, neglect, or inattention, in defending his suit in the first instance.—See White v. Ryan, 31 Ala. 400" court="Ala." date_filed="1858-01-15" href="https://app.midpage.ai/document/white-v-ryan-6506144?utm_source=webapp" opinion_id="6506144">31 Ala. 400; Shields v. Brown, ib. 535; Allington v. Tucker, 38 Ala. 655; Dothard v. Teague, 40 Ala. 583" court="Ala." date_filed="1867-01-15" href="https://app.midpage.ai/document/dothard-v-teague-6507318?utm_source=webapp" opinion_id="6507318">40 Ala. 583; Callahan v. Lott, 42 Ala. 167" court="Ala." date_filed="1868-01-15" href="https://app.midpage.ai/document/callahan-v-lott-6507474?utm_source=webapp" opinion_id="6507474">42 Ala. 167; Ex parte North, 49 Ala. 385" court="Ala." date_filed="1873-06-15" href="https://app.midpage.ai/document/ex-parte-north-6508518?utm_source=webapp" opinion_id="6508518">49 Ala. 385; Martin v. Hudson, 52 Ala. 279" court="Ala." date_filed="1875-01-15" href="https://app.midpage.ai/document/martin-v-hudson-6509005?utm_source=webapp" opinion_id="6509005">52 Ala. 279.
It will be observed that in the two forms of remedy discussed above, no error or fault of the judge by whom the judgment is rendered, enters into the consideration. Accident to the defendant, without his neglect, or fraud of the opposite party which he could not avert, one or the other, is the fundamental fact to entitle a party to relief, who having a meritorious defense, has been denied'the means of making it. The remedy is directed and shaped to redress misfortunes of the suitor; not the errors or faults of the judge. It concedes the judgment to be right on the facts presented, but claims that, without fault, the facts did not properly go before the court.
Section 3837 of the Code of 1876—the same as section.1915 of the Code of 1852—is as follows:
“ Where any error of law or fact has occurred in the settlement of any estate of a decedent, to the injury of any party, without any fault or neglect on his part, such party may correct such error by bill in chancery, within two years after the final settlement thereof; and the evidence filed in the Court of Probate, in relation to such settlement, must be received as evidence in the Court of Chancery, with such other evidence as may be adduced.”
The first controlling thought which presents itself in contrasting the older equitable doctrine, first above considered, with the statute last above copied, is, that while the fonner principle furnishes redress of wrongs which have been inflicted on parties through their misfortune, without any charge of error or fault committed by the presiding judge, the latter only proposes to redress error committed by the judge or court.
Second: Under the older principle, errors of law are never *418redressed; nor are errors of fact, as fact. The whole aim and scope of the latter are the redress of errors of law and fact.
Third: Under the former, mere cumulative evidence is worthless, and is disregarded. Under the latter it is expressly provided for and authorized.
Let us analyze this section 3837, and see if its language does not force us to adopt one construction only. It confers the right to resort to chancery within two years after final settlement, “ when aDy error of law or fact has occurred in the settlement, to the injury of any party.” Not a word said about reserving an exception, about a new trial, about appeal, or about fraud. The language is, when an error of law or fact occurs. Whose error ? Necessarily the court’s. And the redress is as ample when the court commits an error of law, as when it commits an error of fact. The errors need not be those procured by fraud, or. which cannot be redressed on appeal. The statute contains no such limitation as this. There is, however, a limitation in the section. The redress extends Only to such errors of law or fact as occur without fault or neglect on the part of the party seeking redress. That is, if the error of the court be one of law, then the party complaining must not have caused, or contributed to it, by his fault or neglect. So, if the error be one of fact. Volenti non jit injuria. The grammatical construction of this sentence, forces the mind to the conclusion that the legislature meant, and only meant, that the error of law or fact committed by the court, must not have resulted from the fault or neglect of the party who complains that ho was aggrieved thereby. Anything beyond this can not be found in the statute. To me it seems a stretch of interpretation, either to add important words to, or take them from the plainly expressed language of the statute.
Another view is conclusive to my mind, that the opinion of my brothers is not the true construction of this section of the Code so humanely beneficent to the most defenceless classes in any community. If they are correct, all the remedial powers of section 3837 supra, had been in full exercise by the chancery courts of this State, from the dawn of our jurisprudence. Why provide by statute, and in a code of laws framed by legal gentlemen selected for their professional eminence, the identical remedy, and confine it to a class of cases in one named court, which was known and recognized everywhere as already existing, and applicable to all civil causes in every court of record in the State? And, *419notably, why express this new grant of an old power, in language fundamentally dissimilar to that, in which we have all been accustomed to meet the legal principle which my brothers think the legislature intended to declare in the section of the Code under discussion ? I submit the inquiry if the construction of my brothers does not leave section 3837 of the Code without any operation whatever.
Many of the judges of probate are unskilled in the law; and settlements, in that court, frequently pass through without thoughtful, contestation, to the great damage of those entitled to share in the distribution. Hence the wisdom of providing a larger and more liberal system of revision of their decrees, than is considered necessary or safe as a general rule.
The cases of Watts v. Gale, 20 Ala. 817" court="Ala." date_filed="1852-01-15" href="https://app.midpage.ai/document/watts-v-gayle-6504823?utm_source=webapp" opinion_id="6504823">20 Ala. 817, and Duckworth v. Duckworth, 35 Ala. 70" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/duckworth-v-duckworths-admr-6506580?utm_source=webapp" opinion_id="6506580">35 Ala. 70, cited by my brothers, should exert no influence in the construction of the section of the Code under discussion. The first of those cases was decided in 1852, before the statute became operative. The last makes no allusion to the statute, and contains no averment to bring the case within its influence. I think each of them as inapplicable to the case in hand, as is the leading case of French v. Garner.
I regret the necessity T feel myself under of dissenting from the views of my brothers; but I consider the question loo important to be passed over in silence.