Perrine v. Carlisle, 19 Ala. 686

19 Ala. 686 | Ala. | 1851

DARGAN, C. J:.

As the defences setup to tbe debt anteri- or to the judgment at law are purely legal, the question is,, whether this court-, has jurisdiction to afford the relief that the court of law was fully competent to give. The established doctrine of this court is, that equity will not interfere after a judgment at law, unless the party can impeach the justice of the judgment on grounds of which equity alone can take cognizance,, and if the defence to the judgment, could have been made at law,the party must then show that he was prevented from making it by fraud, accident, or'the act of the opposite party, unmixed with negligence or fault on his part.—French v. Garner, 7 Por. 549; Lee & Norton v. The Insurance Bank of Columbus, 2 Ala. 20; Stinnett & Townsend v. The Branch Bank at Mobile, 9 ib. 120.

Testing the bill by this rule it is-without equity.- The allegations are, that the complainant endorsed the bill for the accommodation of Riha, Sykes & Co., and'left it in their.hands tobe used-at its par value, but they becoming embarrassed in their, circumstances,, sold it at a heavy and usurious discount. The bill also alleges that the complainant had no knowledge of the usurious transaction,, by which Carlisle became possessed of the bill,, until after the rendition of the judgment at law, but believed that he became possessed of it' in the usual course of trade.. The bill also shows that Carlisle himself, after the rendition of the judgment, informed the complainant of ’ the terms on. which he obtained the bill, but it alleges that this information was concealed by him from the complainant.until the judgment was rendered.

Upon these allegations the inquiry arises, whether due diligence would not have required the complainant to make inquiry,, before the rendition of the judgment, into the character of the transaction by which Carlisle obtained the bill, and thus learned-the character of his liability, or the grounds of his defence. In the case of Lee & Norton v. The Insurance Bank of Columbus, (2 Ala. 20,) the bill-showed that the complainants-were the accommodation endorsers- of. one Hooker,, and it alleged that, they did not know, of their- legal dfefenee until after the-rendition of the judgment at law,. This court! held,., that due.'diligence re— -quired that the complainants should have made inquiry of Hooker, who, it was to be presumed, was apprised of the facts, and would have given the proper information to enable them' to make their defence at law; .and-as they had failed to make such inquiry,-they were--not entitled to equitable relief. In the case of Stinnett & Townsend v. The Bank, (9 Ala. 120,) one of -the grounds of equity was that Douglass, the principal in the note, who was dead, had paid the bank fifty dollars before the rendition of-the judgment. It was also averred,'that the complainants had no knowledge of this payment until -after the judgment ,'lia-d been rendered. The. court said, that it did not appear that the complainants had used any diligence to ascertain the state of ¿accounts between the Bank and the principal, nor that such information could not have been obtained upon due inquiry. On this ground relief was denied. In the opinion delivered in that - case, it was said that a party who seeks the aid of a court of equity after a judgment at law against him, on the ground that he was ignorant of his defence, must show the exercise of ordinary diligence to discover it, or that he was prevented from employing such diligence by fraud, accident, or the act of the opposite -party, unmixed with fault or negligence on his part. If we sustain this bill, Ave must overrule both of these decisions; for it is apparent that Riha, Sykes & Co., for Avhose-accommodation the note was endorsed by the complainant, - knew the terms upon Avhich they parted with the note-; consequently they could have given the complainant all the information that he could have desired to enable him to defend at la-AV. But he -made no inquiry of them, nor used-any effort to discover his-defence. His failure, therefore, to. defend himself at law, cannot be said to be unmixed with negligence on his part, but on- the contrary, his neglect has been such as to deprive him of -all right to equitable relief.

As to -that portion of the bill -which seeks - relief on the ground that since-the rendition of the judgment Riha, Sykes & Co. had paid upon it eight hundred or a thousand dollars, it is sufficient to say, that the complainant has a full and complete remedy at law, for the court ,on Avhich - the judgment is rendered can supersede the execution, in whole or in part, as the facts and - the rights of the parties may appear.—Lockhart v. McElroy, 4 Ala. 527; Edwards v. Lewis, 16 Ala. 813.

It is also insisted that the bill should be retained on the ground of discovery. But that is not the character of the bill. It is purely a bill for relief, and not for discovery merely; and when the jurisdiction of the court is sought to be maintained on the ground of discovery alone, the bill being one for relief, it must be shown that the discovery is necessary to enable complainant to prove his case. The bill, therefore, should allege that complainant is unable to prove the facts on which he relies for relief otherwise than hy the answer of the defendant. There is no allegation in this bill that a discovery from the defendant is necessary to prove any fact upon which the complainant relies for relief, or that he cannot, by proof other than by the answer, prove any or all of them.

We can perceive no ground on which the jurisdiction of the court can be sustained, and the decree dismissing the bill must be affirmed.