82 Ala. 359 | Ala. | 1886
This is an application for a mandamus to compel the chancellor to set aside an order, granting a rehearing of a consent decree rendered in vacation, in a cause pending in the Chancery Court for Montgomery county, and which' was granted on affidavits filed.
Rule 80 of Chancery Practice, after providing that, when a cause is submitted in term time-for a decree, such'decree shall be valid if rendered during vacation, and for the entry of the decree on the minute-book, and its enrollment, provides further : “When the decree is rendered in vacation, either party may apply for a rehearing, by the second day of the next ensuing term of said court.” The purpose of the rule is unmistakable. Without it, the power of the chancellor over the decree would have terminated on its enrollment. It was intended to extend to either party the opportunity and right to apply for a rehearing within the time limited by the rule ; and on such application being made, that the decree shall be in the power of the chancellor in respect to granting a rehearing, in the same manner, and to the same extent, as when a rehearing is applied for during the term in which the decree is rendered. The rule provides, generally, that an application for a rebearing shall be made, without prescribing the modé of proceeding. The manner in which the application shall be made, the contents of the petition, and the mode in which the chancellor shall proceed, are subject to the regulations of Eule 82. The provision of the latter rule, that “the petition must be confined to the case made by the record,” does not exclude the presentation and consideration ' of extrinsic facts, if relevant and pertinent to the case made by the record; for such construction would ,mak;e-nugatory the express provision, that “ the facts, if they do not appear from the records of the court, must
The general rule is, that a rehearing will not be- granted, when- the decree is rendered by the consent of the solicitors, binding on the parties to the suit; but there aré some exceptions to the general rule. One of the exceptions is, that a rehearing may be granted, for reasons sufficient to enable the court to set aside the agreement or consent, by which the decree was rendered. — Seton on Decrees, 771; Attorney-General v. Tomline, 7 Chan. Div. L. B. 388. On this application, we can not consider the sufficiency of the. reasons set forth to set aside the agreement,-though the chancellor may have'regarded them as sufficient, so far as to enable- him to grant a rehearing. Though the}7 may become material hereafter, they are not now properly before us for consideration. Behearings, in equity, rest in the sound discretion- of the chancellor; and when the discretion is exercised, his decision is not rev-isable, -either on appeal, or by mandamus. — Lyon v. Bolling, 14 Ala. 753; Brumagim v. Chew, 19 N. J. Eq. 337; Travis v. Waters, 1 Johns. Ch. 18; Mills v. Banks, 3 P. W. I.
Mandamus denied.