72 Ala. 300 | Ala. | 1882
1. We concur in the opinion of the chancellor, that the bill does not disclose a case in which a court of equity has jurisdiction to open a settlement of a guardian’s accounts had in the Court of Probate. The jurisdiction conferred on the court by the statute, to intervene for the correction of errors of law or fact in such settlements (Code of 1876, §§ 3837-39), can not be invoked by any other party than one who is free from fault or neglect. The errors complained of must not have supervened in consequence of any want of reasonable diligence in the party complaining.—Otis v. Dargan, 53 Ala. 178; Waring v. Lewis, Ib. 615; Boswell v. Townsend; 57 Ala. 308; Bowden v. Perdue, 59 Ala. 409. The matters complained of in the original bill, were all cognizable by the Court of Probate, on the final settlement of the guardianship in that court, and are necessarily involved in the decree then pronounced. The only excuse now averred for not presenting them to the court "for consideration, and obtaining the relief now sought, is the averment of the ignorance of the complainant, — an ignorance superinduced, not by any positive .misrepresentation of the guardian, but by his failure to charge himself as he ought to have done in his accounts rendered on the settlement. It is not by a mere general averment of ignorance, nor by an averment of ignorance though the party had knowledge of facts that ought to have put him on inquiry, that the imputation of negligence can be repelled.—Martin v. Br. Bank Decatur, 31 Ala. 111; James v. James, 55 Ala. 525. The complainant knew the sums with which the guardian charged himself for rents. If these were, as is now averred, so disproportionate to the real value of the rents, he was at once put on inquiry as to the conduct of the guardian in renting the lands; and inquiry would doubtless have led him to knowledge of all the facts upon which he now bases a claim for relief. The judgments or decrees of a court of competent jurisdiction are of too much value, to be set aside at the instance of a party who has not been diligent in the assertion of the rights he may have involved in them.
2. But, in rendering in vacation a decree dismissing the bill, not affording the complainant the opportunity of amendment, the chancellor erred, and the error compels a reversal of the decree.—Kingsbury v. Milner, 69 Ala. 502.
Reversed and remanded.
