Sanders v. Fisher

11 Ala. 812 | Ala. | 1847

ORMOND, J.

The case made by the bill, entitles the party to the relief he seeks, if he has not forfeited the right by his negligence in not making his defence at law, when again sued for the debt, which as garnishee he had paid.

The only excuse made for not defending the case at law is, that he omitted to inform his attorneys that the suit was for the use of Esther Phelps, and that “ therefore a second judgment was rendered against your orator for the same note.” There is no allegation that he informed his attorneys what his defence was to the note, or that he had any defence whatever to make. It is to be sure stated, that they were the same persons who obtained the judgment agaiust him as garnishee, and whom he afterwards employed to have a judgment against him as garnishee, rendered nunc pro tunc. But he had no right to suppose that they would voluntarily interpose this defence. It was his duty to be active; not only to inform them of his defence, but to furnish them with the means of making it. Putting the most favorable interpretation upon the allegations of the bill, the case presented is one of gross negligence.

It is exceedingly painful thus to witness the triumph of fraud, but if parties will not attend to their interests, but will, by gross and supine neglect, permit a judgment to be rendered against them, it is not in the power of a court of chancery to relieve them, without breaking down all the bulwarks which separate the two jurisdictions. We cannot give relief in this case, without overruling an unbroken series of decisions, holding that equity will not interfere against a judgment at law, unless the party seeking relief was • prevented, from obtaining it in the proper forum, by fraud or accident; or by the act of the opposite party, unmixed with fault or neglect on his fart. [French v. Garner, 7 Porter, 49.] This decision has been repeatedly followed since, and under very strong circumstances has been unflinchingly adhered to, from a thorough conviction of the wisdom, not to say the absolute necessity of the general rule, though like all other general - rules, it may appear to operate harshly in particular cases.

This case falls fully within these principles, as no reason whatever is shown for not making defence at law. Let the decree be affirmed.