Broda v. Greenwald

Dec 15, 1880
Versions:66 Ala. 538
STONE, J.

When appeal is made to the Chancery Court, by a defendant in a judgment at law, to be relieved therefrom, on the ground that he had a valid legal defense to the claim, he must show not only that he had such defense, and was prevented from making it by surprise, accident, mistake or fraud, but he must, in addition to that, show that the prevention was without fault on his part. If he lost the opportunity of making his defense, by the neglect, inattention or mistaken counsel of his own attorney, without any fraud or unfairness of the adverse party, it is, in law, as between him and the adverse party, the same thing as if he had lost it by his own neglect, inattention, or fault.—Ex parte Walker, 64 Ala. 577; Howell v. Motes, Ib. 1; Walker v. Tyson, 52 Ala. 593 ; McBroom v. Sommerville, 2 Stew. 515; Pharr v. Reynolds, 3 Ala. 521; Stinnett v. Br. Bank, 9 Ala. 120; Shields v. Burns, 31 Ala. 535; Ex parte North, 49 Ala. 385; 1 Brick. Dig. 666, § 376. As a bill to obtain a re-trial of the matters of defense set up against the account stated, on which the judgment at law was recovered, the averments of excuse for failing to defend are fatally defective.

The bill avers, that complainant and defendant had been partners in merchandise ; that they dissolved by Greenwald selling his interest to another ; that- a statement of accounts was made, showing a specified sum of money due from Broda to Greenwald, which was paid by the former to the latter ; that subsequently Greenwald claimed there had been an error in the settlement, to his prejudice; that he brought one Gassenheimer with him, and the two made some exam*542ination of the books, whereupon both Greenwald and Gassenheimer claimed that about one hundred dollars was due from complainant to Greenwald. This alleged unpaid balance was the foundation of the suit and recovery, first, before the justice, and afterwards in the Circuit Court. The bill then proceeds to state, that Greenwald pretended and claimed there had been an agreement between complainant and himself that the matter of account and settlement should be referred to Gassenheimer, and that they would settle according to his calculations and conclusion. Complainant denied making such agreement; denied the correctness of Gassenheimer’s calculations; denied that he owed Greenwald anything, and set forth several alleged errors in the account, which, he charges, show that he overpaid Greenwald, and brought the latter in debt to him.

It is settled law, that one partner cannot sue the other at law, on any claim originating in their partnership dealings, unless there has been a settlement of partnership accounts, and an ascertained balance due from one to the other. — 2 Brick. Dig. 309, §§ 138, 143; Morrow v. Riley, 15 Ala. 710. The only theory, on which the suit and recovery at law could be maintained, was, and is, that there had been such settlement, and balance ascertained. That theory, when applied to this case, implies and means, that Broda and Greenwald had agreed to leave the re-statement of the account to Gassenheimer, and that he had re-stated it, and ascertained a balance due to Greenwald. These facts had to be shown by Greenwald, to maintain his action, and without them he had no standing in a court of law. The judgment he recovered must be treated as establishing these facts, as against Broda. That judgment stands, and, as we have shown above, cannot be set aside, or avoided, in this proceeding. It being thus shown that, for the purposes of this suit, Broda and Greenwald did agree that Gassenheimer should restate the account and settlement between them, and they would abide by the result, each is bound by it, and will not be heard to gainsay it, while that judgment stands. The present bill, to surcharge and falsify the account, cannot be maintained, unless the judgment could be first set aside.

Affirmed.