66 Ala. 223 | Ala. | 1880
The principles upon which courts of equity will intervene, for the purpose of restraining the execution of a judgment at law, are now settled without a contrariety of opinion. It is not sufficient for the successful invocation of this jurisdiction, that the judgment or former decision was erroneous, or unjust, or contrary to equity and good conscience. However good or meritorious may be the defense, a party defendant is not excused for a negligent failure to present it by plea, demurrer, or otherwise, in a court of law. Courts of equity uniformly decline to interfere, unless upon the condition precedent, that it must plainly appear that the party seeking relief was prevented from presenting such defense in the court of law, because of surprise, accident or mistake, or the fraud, or act of his adversary, unmixed with fraud or negligence on his part. If the loss of his defense is attributable to his own omission, neglect, or default, this fact is fatal to any redress sought at the hands of a court of chancery, the portals of whose relief are closed against those coming without diligence as well as clean hands.—Waring v. Lewis, 53 Ala. 616, 624; Duckworth v. Duckworth, 35 Ala. 70; Freeman on Judgments, § 486; 3 Wait’s Actions & Defenses, 204, § 10.
The equity of the bill, in this case, is based upon the alleged fraud of the plaintiff in obtaining the judgment, and of surprise or accident in its rendition, contrary to an agreement of the parties that the cause should be continued. There was an agreement in writing, that the matters in controversy should be submitted to arbitration ; which was done, in sub
Conceding that the appearance of the defendant by attorney was, as claimed, for the purpose of obtaining a continuance, tbis fact does not appear from the record. It is not shown by a proper entry to have been limited, or to be pro hac vice merely. It is, therefore, to be taken as a general appearance, and not a special one. The authority of the attorney to appear is admitted; and such being the case, the client is chargeable' with his negligence, if he neglects to specially limit such appearance, or to obtain the consent of court to entirely withdraw it. It would be a dangerous policy, to permit the introduction of parol testimony to impeach records, by qualifying or limiting an attorney’s authority under such circumstances.—Grigg v. Gilmer, 54 Ala. 425; Freeman on Judg. § 128. And even where an attorney appears without any authority whatever, and the record of a court of general jurisdiction recites facts showing jurisdiction of ■ the parties and subject-matter, it may be seriously questioned whether the record does not import such absolute verity, as to preclude extrinsic evidence contradicting such recitals, in cases of domestic judgments. — Freeman on Judgments, §§ 131-134; 4 Wait’s Act. & Def. p. 195, § 12; Abbott v. Dutton (44 Vt. 546), 8 Amer. Rep. 394; Hunt v. Ellison, 32 Ala. 173. Though the rule is held to be otherwise, in the case of foreign judgments rendered in the courts of a sister State.—Kingsbury v. Yniestra, 59 Ala. 320.
The 14th Buie of Practice in the Circuit Court, and other inferior courts of common-law jurisdiction, provides, that “ no private agreement or consent between the parties, or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in xoriting, and signed by the party to be bound thereby.” — Code of 1876, p. 160. The alleged agreement here is in violation of this rule of practice. It is not in writing, as required. It can not be alleged or suggested, by either against the other, as a basis of redress in any court. This principle was expressly decided in Warren, Norman et al. v. Burns, at the present term, where this court held, that such a verbal agreement could not be looked to, or considered in evidence, ag the basis, of relief on a bill filed to regti’ain the.