Powell v. Stewart

17 Ala. 719 | Ala. | 1850

CPIILTON, J.

We have carefully examined the bill and-answer in this cause, and are well satisfied that the decree of .the chancellor is sustained by many adjudged cases, both in this and other courts. The appellant made full defence al law, and a judgment was rendered upon the verdict of the jury against him. The defence was such as might well have been made in the law court, and evidently failed for want of proof. The effort now is to renew the litigation in equity, and many reasons are attempted to be shown by the bill, why this should be done. Without stating them particularly, as they will be seen in the statement of the case, it is sufficient to say, they fail entirely to take the case without the influence of several decisions of this court, adverse to the complainant. — Moore v. Dial, 3 Stew, 155; Standifer v. McWhorter, 1 ib 532; Naylor v. Phillips, 2 Stew, and Por. 58; McGowan v. Young, ib. 160; Mock v. Cundiff, 6 Por. 24; Knotts v. Tarver, 8 Ala. 743; French v. Garner, 7 Por. 549; English et al. v. Savage et al. 14 Ala. 345; Lee & Norton v. The Bank of Columbus, 2 ib. 21; Governor use v. Barrow, 13 Ala. 540; where the authorities are cited.

If it was agreed that the owner of the steam boat “North Star” should pay the draft for( $250, and that O’Neal & Goodwyn should not look to the complainant for it, and this was consented to by all the parties, this was a sufficient answer at law to this part of the account.

2. The ground alleged of mutual accounts cannot avail, since it is quite clear that they were not at all complicated — that the court of law could give adequate relief, and especially since they were submitted to and tried by the law court.

.3. We do not think the testimony of Hudson Powell, said to have been discovered since the trial, could have had any material bearing on the cause in the court below. It was not material whether Stewart was or was not cautioned in regard to the purchase of the account, or whether he was or was not apprised when he purchased it, that its payment would be resisted. His purchase left the legal rights of the parties to the suit, in respect to all payments, discounts, and setts off, acquired before notice of the assignment, the same as if such purchase had not been made. The cases of Drew v. Hayne, 8 Ala. 438, and McGrew v. The Tombeckbee Bank, 5 Pr. 547, show that the equity of the bill cannot be maintained upon the allegations in respect to the proof of Hudson Powell. See also Governor v. Barrow, 13 Ala. 542-3.

4. If the defendant below had desired a discovery in aid of bis defence at law, he could have filed his bill, or exhibited interrogatories under the statute, but having elected to defend without doing so, it is too late after a judgment has gone against him, —after he has taken the chance of success at law and failed, for him then to invoke the aid of chancery, without showing some sufficient excuse, and which this bill fails to show. — Hill v. McNeill, 8 Por. 432.

5. The excuse that the counsel originally employed had died, and that he employed counsel, who resided out of the county, with whom he could seldom meet &c,, and who, for that reason, was not familiar with his grounds of defence, furnishes no reason for opening or overhauling the judgment at law. If after the death of his leading counsel those who succeeded him had not time before the court came on, properly to inform themselves of the merits of the controversy, we must presume the court upon this showing • would- have granted them time, if it had been desired. But no application for further time was made.

The whole case made by the bill shows, that the effect of overhauling the judgment at law would be to re-try in equity what has been already tried at law, and what the latter court was competent to try. The authorities above cited abundantly show that this is not allowable. — Lockard v Lockard, 16 Ala. 430. In this view of the case also, the non-residence of Goodwyn becomes wholly unimportant. If however, we were to concede that the injunction was properly granted in the first instance, yet upon the bill and answer of Stewart we think the court properly dissolved it. There are several controling circumstances in the cause, aside from the consideration of the equity of the bill, which justiy the action of the chancellor. The twelve bales of cotton, which the bill seeks to obtain credit for, appear by the exhibits to the bill to have been credited, and the alleged conflict between the two accounts rendered is explained by the dates, as appears on their face. As to complainant’s draft on O’Neal & Goodwyn in favor of Green-Underwood, the singular fact that the complainant should be the drawer when Abram Powell and not himself was to pay the draft, and when it is shown that Abram Powell was present at the time and is no party to it, is left wholly unexplained. These, with other facts which it is unnecessary particularly to enumerate, satisfy us fully of tlie correctness of the chancellor’s decision. But we entertain no doubt upon the other ground. Let the decree dissolving the injunction be affirmed.