McCollum v. Prewitt

37 Ala. 573 | Ala. | 1861

STONE, J.

The first point relied on in support of the 'equity of the present bill is, that it can be sustained as a bill for discovery. Tt has long been settled in this State, that a party who is sued at law, and suffers judgment to go against him, cannot afterwards maintain a bill for discovery of matters of purely legal defense to the action at daw, unless he shows sufficient excuse for not defending at law, and brings himself within the rule which, in certain cases, allows a party, after trial at law, to have a retrial in equity. — See Powell v. Stewart, 17 Ala. 710 ; 1 Reav. Dig. 284, § 696. Under this principle, bills for discovery, after judgment at law, are placed in the same category with other bills for relief against judgments at law, on account of alleged fraud, accident, or the act of 'the opposite party.

’{2.] The second ground relied on is, that there is usurious interest charged in the note, and recovered by the judgment. This ground stands on the same footing as the other, and comes too late, unless a sufficient excuse be rendered for not defending at law. — See Mallory v. Matlock, 10 Ala. 595 ; Jones v. Kirksey, ib. 579.

>[3.] This case must, then, be disposed of without any reference to the points above noted, further than they tend to show that complainant had a good and valid defense to the action at law. It was early settled in this court, and has never been departed from, that equity will not interfere after a judgment at law, unless the party can impeach tbe justice of tbe judgment by fads, or on grounds, of which he could have availed himself, and was prevented 'from doing so by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on Ins /part — French v. Garner, 7 Por. 549 ; Davis v. McCampbell, and Shannon v. Reese, adm’r of King, both at the present term. In the present case, Mr. McCollum had been sued some seven months before the judgment was rendered. He probably shows a sufficient excuse for not being present at the term of the court when judgment was given against him. But for his omission to mate preparation during all the time intervening between the commencement of the suit and the trial, he oilers no excuse. He filed no bill, and served no interrogatories for discovery, in aid of his defense at law; and if he employed counsel to defend him, or summoned witnesses to testify in his behalf, hq has not informed us of it. This does not relieve him from the imputation of negligence. — Haughey v. Strang, 2 Por. 177; Pharr v. Reynolds, 3 Ala. 521; Stinnett v. Branch Bank, 9 Ala. 120 ; Foster v. Bank, 17 Ala. 672 ; Hair v. Lowe, 19 Ala. 224; Perrine v. Carlisle, ib. 686 ; Watts v. Gayle, 20 Ala. 817 ; Talliaferro v. Branch Bank, 23 Ala. 755 ; Allman v. Owen, 31 Ala. 167 ; Moore v. Lesueur, 33 Ala. 243.

[4.] The irregularity in the affirmance of the judgment by this court, could have been corrected on motion, and furnished no ground for-equitable interposition. — McClure v. Colclough, 6 Ala. 492.

Decree of the chancellor affirmed.