58 So. 262 | Ala. | 1912
This is a bill in equity to set aside a judgment in a court of law, because obtained by surprise, accident, mistake, or fraud. The equity of the bill was tested and settled on a former appeal, reported in 167 Ala. 587, 52 South. 845. As was held before in this case, and in Renfro Bros. v. Merryman, 71 Ala. 195, this and the statutory remedy provided in section 5372 of the Code are cumulative. The case was subsequently tried on the bill, answer, and proof, and the bill dismissed, and from such decree of dismissal the complainant prosecutes this appeal.
After a careful examination of the pleadings and the proof in this case, we are led to the inevitable conclusion that the complainant was entitled to the relief prayed and that the chancellor erred in dismissing his bill.
The complainant lived in Morgan county, and the respondent in Cullman county. Complainant owned a certain mule, which he sold to one Rutherford on credit, taking a mortgage to secure the purchase price, which mortgage was promptly and properly recorded, as required by the statutes. Rutherford traded this mule to respondent, and respondent -instituted a prosecution against Rutherford for thus trading mortgaged property, and Rutherford left the state. Complainant personally informed respondent of the fact that he had a mortgage on the mule, but consented for respondent to keep the mule until he had finished making his crop, under the promise from respondent that he would then return the mule to complainant, which promise respondent made good by delivering the-mule to complainant at the latter’s home in Morgan county. Subsequently respondent heard, through third parties, that complainant had consented for Rutherford to trade the mule, and he thereupon instituted a suit of trover, in Cullman county, against complainant, Avho lived in Morgan county, as for a conversion of the mule.
The respondent here (plaintiff in the action at law) was represented, in bringing the suit, by an attorney who resided at Cullman; and the complainant here (defendant in the action of trover) was represented by his attorney, who lived in Morgan county.
The defendant in the action of trover, by his attorney, filed a plea in abatement, setting up the fact that he resided in Morgan county, and not in Cullman county. This plea was filed within the timé required, and was the only plea filed.
Defendant’s attorney on the same day called up, over the phone, another firm of attorneys in Cullman, and requested them to represent him (the attorney) relative to obtaining the continuance. This firm of attorneys, two of them, conferred with plaintiff’s attorney on the morning of the day on which the case was set for trial; but the evidence is in conflict as to exactly what agreement was made; but it is undisputed that the case was regularly called for trial on the morning of that day, and was continued by a separate and regular order shown by the circuit court record. The defendant’s evidence shows that the continuance was in pursuance of the various agreements; while the plaintiff’s tends to show that it was because the plaintiff or his witnesses were not present, and his attorneys could not prove his case.
It is undisputed that none of the plaintiff’s witnesses were present in court, or in attendance, on the day the case was set for trial, and that the plaintiff himself was the only witness examined. It is likewise not controverted that plaintiff himself was not present when the case Avas called for trial, and Avhen it was continued by the court; but it is shown that he was present, and that neither the defendant nor his attorney Avas present, when the case Avas subsequently called up and the continuance set aside and a judgment taken for the plaintiff, and that neither was notified of the purpose to set aside the' continuance and take a judgment. It does
The plaintiff himself testified as follows: “I never saw the mule, after I turned it over to Mr. Evans, that I remember. The place where I delivered the mule to Mr. Evans was in Morgan county. Mr. Evans didn’t require me to pay for the work of the mule for the year 1907. After Harris Cook told me what he did, and after I saw the witnesses, I went to see Mr. Evans about it. I saw Mr. Evans in front of his house, in his horse lot. Mr. Rutherford was gone at that time, or was reported gone. I told Mr. Evans on this occasion that I understood that he had liberated Rutherford to trade the mule. He said it wasn’t true. I didn’t tell him who had informed me, and he didn’t ask me. That was three months or so after I had delivered the mule to him. I told him I had been to see these witnesses, and they told me that they heard him say so. I never told him who1 the witnesses were. At the time I filed this suit against Mr. Evans, he was living in Morgan county. He had a permanent residence in that county.”
Plaintiff’s attorney testified in part as follows: “My recollection is that this case was set regularly for trial. I don’t remember, but my recollection is’ that the judgment was taken either on Friday or Saturday of the last week of the court. [The record shows it was Saturday.] I believe the judgment was taken at the afternoon session of the court. I haven’t any independent recollection as to when the case was called; but it was called when I was unable to make out a case, and an order of continuance was entered. I presume the case was called for trial when the continuance was entered. It was continued because I was unable to make out a
The evidence is unconverted that this complainant, the defendant in the action of trover, was informed by his attorney that, the case was continued; and that defendant’s attorney, after two or three conversations over the phone with plaintiff’s attorney and the associates of defendant’s attorney, who were at Cullman, was advised that the case would- be, and had in fact been, continued; and the record of the circuit court, before referred to, shows that the case was actually continued by a separate order, entered on motion of the attorneys for both parties.
It is true that plaintiff’s attorney says that when the continuance was entered it was understood between him and the trial court that, under certain conditions mentioned by him, it might be set aside; but there is no evidence that the defendant, or his attorney, or the attorney’s associates, were parties to such agreement, or had any knowledge thereof; and the order continuing the case does not recite or mention any such agreement or understanding. But it is a regular order, continuing
We are of the opinion that it would he unconscionable to allow this judgment, procured as the undisputed evidence in this case shows it to have been, to stand; that, notwithstanding’ the conflict in the evidence, the case Avas actually continued on motion of the attorneys for both parties. The record so recites. This shows, we think, that the order was made in pursuance of the agreement, and relieves the case of the difficulty that the agreement Avas not in writing. The record, we think, aids complainant’s evidence, if it does not conclusively show, that this oral agreement to continue was executed and carried into effect by an entry of record in open court that the case Avas continued for the term. After this entry of record, continuing the case for the term, this order should not have been set aside, and the case tried, Avithout notice to the defendant or to his attorney. This record shows that they had no notice of the plaintiff’s motion to set aside the continuance and proceed to trial. The defendant or his attorneys were certainly entitled to notice of this motion. While the attorney for the plaintiff testifies that he had an understanding Avith the court that this order of continuance might be set aside and a trial had, there is nothing to show that the defendant, Evans, or his attorney, was a party to any such agreement or understanding; and the judgment entries are against the contention of the plaintiff in this regard. If the case had not been continued in pursuance of the oral agreement, then we would concur with the chancellor that the cases of Norman v. Burns, 67 Ala. 248, and Collier v. Falk, 66 Ala. 223, would prevent the relief. But here we find that the oral agreement was consummated and carried into an order of the court. The order of continuance for the
Mr. Freeman, in his work on Judgments (section 113), says: “A court is justified in vacating a judgment obtained in the absence of the defendant, when he had been led to believe that the cause would not be tried, or had been otherwise misinformed as to the time of trial, and there is.no doubt of his acting in good faith.” As before stated, the undisputed evidence in this record shoAvs the conditions stated by Mr. Freeman.
Mr. Black, in his Avork on Judgments, says: “Where it is apparent that there was an honest agreement between the parties that the case should be continued, and yet the plaintiff, without notice to the defendant, and
A case very much like this is that of Binsse v. Barker, 13 N. J. Law, 263 264 (23 Am. Dec. 720), in which that court said: “It is apparent that there was an honest agreement between the parties that thé cause should be adjourned, and yet the plaintiff below, without notice to the defendant, and in violation of this agreement, proceeded to trial, and obtained a judgment in his absence. Whether the agreement ivas precedent or subsequent, can make no difference; the defendant has been injured by the want of good faith on the part of the plaintiff, and this court will not sustain a judgment under such circumstances.”
As before remarked, it is true that plaintiff’s attorney denies the terms of the agreement; but there is no doubt that defendant and his attorney were advised, by information which they were justified in believing, that an agreement for a continuance was had; and it is undeniable that the case ivas actually continued, and that subsequently, on the same day, it was reopened, in the absence of the defendant and his attorney, and without notice to them of the subsequent action of the plaintiff and of the trial court, and a judgment procured against the defendant.
The case nearest like this, which we have examined, is that of National Fertilizer Co. v. Hinson et al., 103 Ala. 432, 15 South. 844. While the relief therein prayed was denied, the law as announced in that case, is to the effect that relief should be granted in a case in which the facts are such as shown in this case. In that case, the court, on Thursday, publicly announced that all civil cases would be continued for the term, and that all parties could go home. On Saturday thereafter, a judg
In that case, the relief was denied, because defendant was in default when the case was continued, and the continuance could not and did not cure his default, nor deprive the plaintiff of his right to have a judgment on such default. Such was not the case here. A plea, which it cannot be denied was a defense to the acti'on, was on file, having been filed in time; but this was evidently not called to the attention of the court, else judgment could not have been taken — the plaintiff’s own testimony would have proved the plea.
It follows that the decree of the chancellor was erroneous, and it is set aside; and a decree will be here entered, perpetually enjoining the execution of the judgment in the court below.
Reversed and rendered.