54 So. 499 | Ala. | 1911
The original bill in this cause was filed December 30, 1905, by appellant as a stockholder in the defendant corporation, and sought to set aside, as fraudulent certain issues of'stocks and bonds. After an appeal to this court from rulings on demurrer (Palliser v. Home Telephone Co., 152 Ala. 440, 44 South. 575), the bill received its final shape by an amendment which was allowed on January 13, 1908. Thereafter
Counsel have by statute the authority to bind parties by agreements in relation to a cause, and such agreements may not be set aside for any less cause than would warrant the rescission of contracts in general, namely, fraud, accident, mistake, or some other ground of the same nature.—Ex parte Hayes, 92 Ala. 120, 9 South. 156. No doubt the rule here stated performs its proper office in respect to agreements touching the facts in controversy or the substantive rights of the parties. Parties have not the power by agreements concerning mere procedure to control at all times the
A judicial act is said to lie in discretion when there are no fixed principles by which its correctness may be determined.—2 Encyc. Pl. & Pr. 409. The general current of authority is that such determinations are not -subject to review on appeal, and so it has been held in this state in cases involving questions of the sort here in issue. This court has refused to review rulings of the trial bench on applications to take further testimony, or to re-examine a witness after publication passed, to order a reference re-opened., to enlarge the time within which a garnishee may answer, or to reopen a cause upon the merits of newly taken testimony.—Nunn v. Nunn, 66 Ala. 35; Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. 813; Dixon v. Higgins, 82 Ala. 284, 2 South. 289; Talladega Co. v. McDonald, 97 Ala. 508, 12 South. 34.
The chancellor put his ruling upon the ground that he had no discretion. In effect he declined jurisdiction of the application. We cannot know what would have been his ruling if he had been of a different mind in respect to his power to act. Possibly his decision would
Reversed and remanded.