Moore v. Faggard

51 Ala. 525 | Ala. | 1874

B. F. SAFFOLD, J.

The appellant, in his bill, alleged that the appellees, suing as a partnership under the firm name of R. D. Faggard & Co., had recovered a judgment by default against him for work and labor done in building a house. He claimed that they were not partners, but joint creditors of himself, and that they separately owed him accounts nearly or quite equal to the amount recovered by them, and were insolvent. The chancellor, on demurrer for want of equity, dismissed the bill, because he showed no reason why he had not applied for relief before the rendition of the judgment, which now estopped him from denying the partnership of the defendants.

It is not at all improbable that the complainant might have had a case for equitable relief, if he had applied for it before the judgment at law. A joint debt may in equity be set off against a separate debt, where there is a clear series of transactions, establishing that there was a joint credit given on account of the separate debt. 2 Story’s Eq. Jur. § 1437. But the individual debt of a member of a partnership is not a set-off to a debt due the partnership. Pierce & Baldwin v. Pass & Co., 1 Port. 232. It is possible it might be in equity, if it were shown that the partnership was not insolvent, and that the individual member was. But no such state of facts is alleged in the present bill.

Where a party, after judgment at law, seeks its injunction, on grounds known to him before, he must repel negligence, or want of diligence on his part. He ought not to let the suit at law proceed to judgment, when he knows he has an equitable defence against it. He is especially not entitled to relief after judgment, when that judgment, rendered by a court of competent jurisdiction, establishes facts preclusive of his right to relief. Such judgment is as conclusive as any other, and can only be set aside on the ground of fraud, accident, or the act of the opposite party. Brickell’s Dig. p. 666, § 376; Isbell v. Morris, Bell, & Co., 1 Stew. & Port 41; McCollum v. Prewitt, 37 Ala. 573. The complainant assigns no reason whatever why he suffered the judgment to go against him.

Note by Reporter.— The appellant’s counsel having filed an application for a rehearing, the following opinion was delivered in response to it.

The decree is affirmed.

B. F. SAFFOLD, J.

The legal defence, which the appellant lost by neglecting to defend the suit at law, is the non-partnership. The partnership of the plaintiffs in that suit is now established against him, by the judgment of a court of competent jurisdiction, and he has nothing to say why he suffered it to be done. The allegation of the bill, that the plaintiffs in the action at law were each equally interested, and entitled to receive one third of the price of doing the complainant’s work, is not equivalent to an averment that the partnership owed no debts of any description to anybody.

A rehearing is denied.