Collier v. Parish, 41 So. 772

Collier v. Parish

41 So. 772 | Ala. | 1906

SIMPSON, J.

The first and second assignments of error relate to the action of the court in its decree of January 1, 1902, overruling the motion to dissolve the injunction and to dismiss the bill for the want of equity. Those were motions with regard to the original bill, which rvas afterwards amended by the filing of the amended hill on -which issue was taken and the cause submitted. It is too late now to assign- such action of the court as error. Practically the same questions come up in disposing of other assignments of error going to the merits of the case and the action of the court in rendering the decrees.

*529Tlie prayers of the bill are, first, for a temporary injunction, with the usual prayer that it be made perpetual ; second, that the decree be declared null and void on account of fraud, that orator be permitted to come in and defend against the claim of said respondent, and that a reference be ordered to the register to ascertain the amount of the unpaid purchase money and what amount if any remains due. The decree is that complainant is entitled to relief and to have the temporary injunction made perpetual, which is decreed, and it is further decreed that Parish is not indebted to A. A. Collier in any amount for the purchase of the land, nor upon the note or notes given to tin1 complainant for the land, nor on the notes described in the pleading. Under our decissions, the dignity of a judgment is such that, in order to set it aside even on the ground of fraud, the-complainant must prove that he had a meritorious defense which could be established by evidence on another trial, and that the judgment Avas taken by the fraud of the opposite party unmixed Avith negligence on his OAvn -part. Thus, although the judge had announced that, no civil cases Avould be taken up, and that all parties interested could go home, and the, opposing counsel afterwards obtained the judgment by stating to the court that it had been agreed on, this court held that the party Avas not entitled ro relief because he failed to put in a plea. — National Fort. Co. v. Hinson, 103 Ala. 532, 15 South. 844. And in a case where the party trusted to the verbal assurance1 of the attorney of tire opposing party that no judgment Avould be taken, in place of insisting on having the agreement in writing, the court said: “Tlu1 civcumRtanc.es which are relied on to excuse failure to defend at Iuav must haAre been such that no exercise of diligence on his part could have guarded against,” etc. — Norman v. Burns, 67 Ala. 248, 252. See, also, Ex parte Wallace, 60 Ala. 267; Collier v. Falk, 66 Ala. 223.

All of the authorities hold that the proof of the essntial matters shall be clear- and convincing. The complain’ ant in this case rests his case entirely upon the verbal *530assurance which he claims that J. B. Collier gave him. Pretermitting for the. time being the question as to the legal sufficiency of the facts, even admitting them to be just as testified to by the complainant ,the burden certainly rested on him to prove, by that clear and conclusive testimony which the law requires in such cases, first, that J. B. Collier was the agent of A. A. Collier in the management of his case, with authority to dismiss it, and, second, that he did make the statement as claimed in this bill. There is not a particle of proof about the agency, except some vague statements about looking after some lands for his wife and having looked after some cases in the. justice of the peace court, none of which tended to show that he was clothed with the authority claimed in regard to this particular case. It is shown, too, by the testimony of the complainant himself, that he knew that Mr. Hubbard, the attorney, had possession of the notes and had brought the suit; also that, when he went to Mr. Hubbard once to get the notes for a short time, Mr. Hubbard refused to let. him have, them unless he would bring a written order from Mrs. A. A. Collier. He also states that. J. B. Collier never told him that he was authorized to dismiss the suit, but only that what he did would he all right. He also admits that, while he. does not recollect it, Mr. Hubbard may have told him (as Mr. Hubbard swears he did) that he (Hubbard) had charge of the matter, and that complainant had better get a lawyer and put in his answer, or a judgment would be taken against him. He .also admits that it mtay be true, as testified to by Mr. Hubbard, that J. B. Coilier told him, in Hubbard’s presence that he had nothing to do with the case, and that it was in Hubbard’s hands. Taking his own testimony, in connection with that of Mr. Hubbard, the proof utterly fails on the question of agency and as to what was really said. The complainant, relies entirely on lijs own testimony which is contradicted by J. B. Collier,. The complainant filed no answer», did not even inquire of the register as to whether the suit was dismissed, nor of the attorney who had possession of the note and wa s in charge of the case. We hold that his contention i\s not sup*531ported by that convincing evidence which the law demands, and he has not acquitted himself of all fault or negligence as the law requires in order to set aside the decree of the court.

These rules of law may sometimes work hardship; hut, looking to the general good, the law deems the' integrity of the judgments, of our courts too important to allow them to he disturbed by a less measure of proof. The decree of the court is reversed, and a decree will be here entered dismissing the hill.

Reversed and rendered.

Weakley, C. J., and Haralson, and Dowdell, JJ., concur.