Owen v. Gerson
119 Ala. 217
Ala.
1898
Check Treatment
HEAD, J.

It may be that insolvency alone of the plaintiff in judgment is not a sufficient ground for resort by defendant to a court of equity to set. off á demand held by him against the plaintiff which could have been made available as a defense in the action-at law, and that to support a bill it must be averred that the failure *219to plead and obtain tbe benefit of tbe setroff in tbe action at law was due to fraud, accident or. mistake .unmixed with negligence, etc., as is required in reference to defenses that are necessarily involved in tbe adjudication at law. It seems to have been so expressly field in Pearce v. Winter Iron Works, 32 Ala. 68, and Nelms v. Prewitt, 37 Ala. 389. See also, Watts v. Sayre, 76 Ala. 397. But tfie demurrers to tfie bill raising tfiat question fiave not been passed upon by tfie chancellor, and tfie question is not before us., Tfie chancellor having, dissolved tfie injunction and dismissed the bill for want of equity, we fiave only to inquire whether tfie bill,, considering all amendable defects as having been cured by amendment, contains equity — whether in the absence of demurrer tfie averments are sufficient to support decree pro ccmfesso and final decree granting relief. '

Tfie complainants, after sufficiently setting up the set-off and averring insolvency of the defendant (plaintiff in tfie judgment at law) set up in tfie bill, as an excuse for not defending at law, their continued sickness. Whilst this is obviously insufficient upon demurrer specifying its defects, yet the defendant in tfie bill may, if fie chooses, accept it as sufficient by not making specific objection by demurrer, pointing out tfie defects, and in tfiat case tfie averment would sustain the bill and relief granted thereon/ A motion to dismiss tfie bill or dissolve tfie injunction for -want of equity would' not lie. Such is, in effect, this case as it comes before us — tfie demurrers not having been passed upon — rand we are compelled to hold tfiat tfie decree sustaining the'motion to dismiss and dissolve tfie injunction was erroneous.

Reversed, injunction reinstated and cause remanded.