10 Ala. 595 | Ala. | 1846
The chancellor was clearly correct in dismissing this bill for want of equity. We have carefully examined it, and cannot discover any allegation which would furnish a pretence for sustaining it. In respect to the ruling of the county court upon the interrogatories to the defendant that does not entitle the complainants to a hearing in chancery. In Mallory, et al. v. Matlock, 7 Ala. Rep. 757, it is suggested that if interrogatories in such a case are improperly rejected, a mandamus would be the appropriate remedy to compel the primary court to admit them. If this suggestion be well founded, it would have been competent for the complainants to have applied for that writ, at the term of the circuit court intervening between January and July, 1844, Bnt if they had not thought proper to pursue this course, they could have filed their bill previous to the judgment at law; for the proviso to the act of 1837, under which the interrogatories were proposed, explicitly declares that a party to an action at law, may exhibit his bill “ for a discovery against any adverse party, as heretofore, if he shall elect to do so; but any party having elected to file such interrogatories, shall not be allowed afterwards to exhibit a bill in chancery for discovery, touching the same matters.” [Clay’s Dig. 341, § 160.] Interrogatories which the court have disallowed, cannot, within the meaning of the proviso, be said to have been filed; consequently there was no election which could have prevented the complainants from calling for a dicovery by bill; and if there was, it is apprehended that the same reason would apply after judgment at law, u-nless there was some independent ground for equitable interposition. It has been repeatedly held, not only by this, but other courts, that chancery cannot entertain a bill for discovery after a judgment at law, where the fact sought to be elicited is matter of legal defence; unless an excuse is offered for not having exhibited it at an earlier period. So it may be regarded as settled, that relief cannot be obtained in equity against usury, where the party has omitted to plead it at law, and shows no excuse for the failure. The law was so ruled by our predecessors in this
In Crawford v. the Bank of Mobile, 5 Ala. R. 55, the defendant failed to answer the bill, and it was said that it could not be assumed that because a bill was wanting in equity, that the complainant exhibited it merely for the purpose of obtaining delay. He may have been prepared to sustain its allegations, and impressed with the belief that its equity was unquestionable. But in the case at bar, the answer is a complete denial of the bill, and showing very forcibly, in the language of the statute, “that the injunction was obtained for delay.” Consequently the case was a proper one for the imposition of damages. The fact that the bill was dismissed because the case presented was not proper for a court of equity, cannot place the complainants in a more favorable position.
We have but to add, that the decree must be affirmed.
