30 Ala. 352 | Ala. | 1857
The bill is filed for relief against a judgment at law. The only defenses set forth in the bill, to the note on which the judgment is founded, are such defenses as could have been made at law; and it is well settled, that, in such a ease, the complainant is not entitled to relief in chancery, unless he exempts himself from all blame for not making his defenses at law. — Taliaferro v. Br. Bk. at Montgomery, 23 Ala. 755, and authorities thereiu cited ; Cullum v. Casey, 1 Ala. 351.
The excuse alleged by the complainant, for not using his defenses at law, is, that he was not served with process, had no notice of the suit at law during its pendency, and did not appear nor authorize any one to appear for him. These negative averments show a sufficient excuse, if they are established in any lawful mode. And the complainant contends, that, although they are denied in the answer, ho is not required to adduce evidence of their truth, but that they cast upon the defendant the burden of proving that the complainant was served with process, or that he
The presumption, arising from the admission in the bill, of the entry of an appearance for both defendants in the suit at law, not being repelled by evidence, we must hold that the excuse for not making the defenses at law is not established, and that the bill was properly dismissed. Cullum v. Casey, supra.
Decree affirmed, at the costs of appellant.