39 Ala. 183 | Ala. | 1863
We do not think the complainants make a case for an injunction of this entire cause, on the ground of fraud in obtaining the judgment. In fact, we think that much was in effect settled when the case was formerly here, on appeal from the order dissolving the injunction. We then employed the following language: “The matters relied on for an injunction oí the luhole of it, if available any where, were in their nature available at law. It is not established that the complainants were prevented from availing themselves of those matters, at law, by fraud, accident, or the act of the. opposite party, unmixed with fraud or negligence on their part. Ignorance, which was avoidable by reasonable diligence, can not form any part of a complainant’s title to relief in equity.” True, we spoke of the responsive-matter of the answers; but we went further. We, in effect, declared the bill to be insufficient for this purpose. See Stetson & Co. v. Goldsmith, 31 Ala. 649. With what we then said we are satisfied, and hold that, so far as the complainants seek relief on the ground of alleged fraud in obtaining the judgment, the bill must fail.
The objection to this judgment is, that it is not subsisting, except for a small balance, by reason of certain proceedings had in the city court at the instance of Stetson & Oo. The suit of Stetson & Oo. v. Goldsmith was commenced by attachment, issued by the clerk of the city court of Mobile. The attachment was void, for want of authority in the officer issuing it. — Stevenson v. O’Hara, 27 Ala. 362; Matthews v. Sands, 29 Ala. 136; Flash v. Paull, ib. 141. Under this attachment, goods of Goldsmith were levied on, which were afterwards sold, under the order of the court, as perishable, and the proceeds placed in the hands of the clerk of the court. After the judgment was rendered in the cause, a motion was made in the city court, that the clerk be required' to pay over the money realized from the sale of the goods, on the judgment recovered; but.no order was ever made on that motion, and the motion itself was afterwards abandoned. Subsequently, the judgment which this suit seeks to enjoin, was rendered in the trespass suit by Goldsmith v. Stetson & Co., the cause of action being the illegal seizure and sale of Goldsmith’s goods under the void attachment ; and that' judgment was affirmed against Stetson & Co. and their surety on the appeal bond.- Stetson & Co. then moved in the city court, against the clerk, that he be required to pay over said money to them, on the alleged ground that the proceeds of the goods had become their property, by reason of the recovery in trespass against them. The court refused to grant the order as asked, but made an order, “that, the said Lewis” [the clerk] “pay to the said M. S. Stetson & Co., plaintiffs in said suit, the said .sum of money, on their giving a receipt for the money on account of the said execution” [judgment]. So far as we
Erom what we have said above it results, that tbe judgment of Stetson & Co. v. Goldsmith is valid and subsisting, and tbe chancellor did not err in ordering it to be set off against so much of tbe judgment of Goldsmith against tbem.
Tbe only other question in tbis cause relates to tbe rent, which was claimed by tbe landlord, and which was paid out
For the single error above pointed out, the decree of the chancellor is reversed, and the cause remanded.