67 Ala. 248 | Ala. | 1880
— The object of the original bill, in which the appellee is complainant, is to obtain relief from a judgment at law, rendered in favor of the appellants, Norman and S. L. Martin, in the Circuit Court of Talladega county, and against the appellee, as survivor of the late firm of Burns & McCain. The judgment is founded on a debt owing by Burns & McCain to S. L.. & B. R. Martin, for tobacco by them sold and delivered to Burns & McCain. The original existence and justness of the debt is not disputed, but it is averred that before the commencement of the suit at law, it was paid in full to B. R. Martin, in the latter part of the year 1861, or early in 1862, and a'receipt taken, which has been lost or mislaid. The note by which the debt was evidenced was not surrendered when the payment was made, because it was at Martin’s residence in Virginia, and the payment was made at the residence of the appellee in Alabama. Before the payment was made, it is admitted, the appellee had received notice of the assignment and transfer of the debt to one Jesse Wooten, through, and from whom, the appellants, Norman and S. L. Martin, claim and derive title. The appellee was induced not to make defense to the suit at law, by the verbal assurance of Martin, one of the attorneys for the plaintiff in the suit, that it was unnecessary, as no judgment against him -would be claimed at the term of the court at which judgment was rendered; and he would correspond with his clients, and endeavor to bring about an equitable and satisfactory settlement of the matter, and would inform the appellee of the result of his correspondence. In violation of these assurances, the judgment was taken, and the appellee was not informed thereof until more than four months after its rendition.
That a court of equity can not relieve against a judgment
The defense, and only defense, to the demand upon which the judgment at law is founded, is payment of it before the commencement of suit, a pure, legal defense of which the court of law had full and complete cognizance. The only reason for not making defense at law, assigned in the bill, is, the mere verbal assurances of one of the attorneys for the plaintiffs, that judgment should not be taken at the approaching term of the court of law ; that he would correspond with his clients, and endeavor to procure a satisfactory adjustment of the matters in controversy. The authority of an attorney at law, in this State, is very large ; and, because of its extent, the statutes and rules of practice, proceeding upon reasoning and principle, like unto that on which the statute of frauds is founded, declares that “an attorney has authority to bind
The decree of the Chancellor is reversed, the injunction heretofore granted is dissolved, and a decree is here rendered dismissing the original bill at the cost of the appellee in this court, and in the court of chancery.