Hauser v. Foley & Co., 67 So. 252

Hauser v. Foley & Co.

67 So. 252 | Ala. | 1914

SOMERVILLE, J.—

(1) In the absence of a statute providing otherwise, a justice of the peace has no control over a judgment after the day of its rendition; and such judgment, if valid upon its face, cannot be thereafter vacated by him on the motion of a party for any sort of irregularity in fact. — 24 Cyc. 596d.

In the present case the complainant could not by direct motion have procured the vacation of the judgment erroneously rendered against him by the justice of the peace, except, of course, by the consent of the plaintiff therein; and his only remedy was by the statutory writ of certiorari within six months, or by bill in equity. The case of Glass v. Glass, 76 Ala. 368, 370, is not opposed to this conclusion. It was there said: “All courts possess the inherent power to vacate, within a reasonable time, any order they may have made, which is on its face void, or so grossly irregular as not to reach the ends which the record shows were aimed *440at.. Such correction .is made, on motion, in the court where the judgment is rendered; and there should be notice of such motion, unless the judgment or order is void on its face.”

(2) In the instant case the judgment is, upon the record, affirmatively regular and valid. The distinction is illustrated by the authorities cited in Hatchett v. Billingslea, 65 Ala. 16, 29, 30; Chamblee v. Cole, 128 Ala. 649, 30 South. 630. However, equity has impendent and original jurisdiction of such a bill, and proceeds to its exercise without regard to the complainant’s failure to resort to cumulative legal remedies. — Todd v. Leslie, 171 Ala. 624, 55 South. 174; Evans v. Wilhite, 167 Ala. 587, 52 South. 845.

(3) The only debatable question raised by the demurrer to the amended bill is whether or not it exhibits such laches in the assertion and prosecution of the complainant’s right to vacate the judgment in question as to forfeit that right in a court of equity.

“The true doctrine concerning laches has never been more concisely and accurately stated than in the following language of an able living judge: ‘Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are. in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay - becomes inequitable, and operates' an estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but, when a court sees negligence on one side and injury therefrom on *441the other, it is a ground for denial of relief.’ — Stiness, J., in Chase v. Chase, 20 R. I. 202, 37 Atl. 804.” 5 Pona. Eq. Jur., | 21.

“Laches, as has been well said, does not, like limitation, grow out of the mere passage of time, but it is founded upon the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relation of the property, or the parties. — Galliher v. Cadwell, 145 U. S. 368 [12 Sup. Ct. 873, 36 L. Ed. 738].” First Nat. Bank. v. Nelson, 106 Ala. 535, 18 South. 154.

This theory of laches is well discussed and illustrated by McClellan, J., in Rives v. Morris, 108 Ala. 527, 18 South. 743.

In Grier v. Campbell, 21 Ala. 327, and Raisin Co. v. McKenna, 114 Ala. 274, 21 South. 816, where the bills were filed, as here, to vacate judgments rendered without notice to the defendants, it was held that the lapse of two years and eight months in the former and three years in the latter case was ho bar to the relief sought.

It is true that in particular cases a long lapse of time may alone generate a presumption of probable injury from the dplay to the party complained against; or it may exhibit such flagrant indifference to the complainant’s asserted' right as to forfeit the protection of a court whose maxims and policy favor the diligent rather than the slothful. Nevertheless, a consideration of the present case neither condemns the delay of the complainant as unexcused, nor indicates any probability of prejudice to the respondent as the result of that delay.

On the face of the amended bill, we think that the complainant- is entitled to be reinstated' as defendant in the original cause, with opportunity to defend against the claim sued on. If there are any special’ *442circumstances which render this relief inequitable at this time, they should be presented by way of answer to the bill.

(4) The fact that complainant allowed the suit in the city court to proceed to judgment against him did not, under the circumstances shown, preclude his subsequent resort to a court of chanery for relief by the use of a defense not available to him in the law court. The authorities are collected and fully discussed in Stevens v. Hertzler, 114 Ala. 563, 2 South. 121.

It may very well be that, in view of complainant’s failure to file his bill before judgment was rendered against him in the city court, he ought in any event to be taxed with the costs there accruing as an incident to that judgment. See Paulding v. Watson, 21 Ala. 279.

It results that the demurrers to the bill, whether as first amended or as last amended, should have been overruled; and the decree of the chancery court in that behalf will be reversed, and a decree here rendered in accordance with the foregoing opinion.

Reversed and rendered.

Anderson, C. J., and de Graffenried and Gardner, JJ., concur.