Traub v. Fabian

49 So. 240 | Ala. | 1909

SIMPSON, J.

This appeal is from a judgment of the court refusing to grant a rehearing, under section 5372 of the Code of 1907. The gravamen of the petition is that the petitioner is a foreigner not well versed in the English language; that P., of the law firm of P. & B., ■had in hand- several cases by one C. against petitioner in the “inferior court of Birmingham,” which had been attended to by P.; that petitioner, on being sued by Fabian (appellee) in the city court, went or sent to P.’s office, and, not finding him in, left the copy of the summons and complaint on his desk; but afterward, finding that. P. was out of the city, petitioner went to P.’s partner, B., and requested him to look after the case; that B. supposed that the case referred to was the case or cases already in the inferior court, and assured petitioner several times that he was looking after his case, and did not understand, until after the judgment by default, that another case had been commenced against said appellant, Traub, in the city court. The petition states “that, at the time of the employment of said B. to represent your petitioner in said suit of Fabian, and to defend against said suit, your petitioner plainly and positively stated the style of the suit and court that the same was pending in, and your petitioner alleges said B. is as equally positive and certain that he understood the suit in which he was to represent your petitioner and defend against was that which had previously been managed and looked after by said P. in the inferior court.

Both the statute and our decisions are clear to the effect that, to entitle a party to the benefit of a rehearing under said statute, he must have been prevented from making his defense by surprise, accident, mistake,' or fraud, without fault on his part or on the part of his attorney. It is the duty of the party desiring the services of an attorney to inform him distinctly as to the name of the party suing him and the court in which he is sued. The copy of the complaint is served upon him for the purpose of informing him fully as to the nature of the suit against him, who the plaintiff is, and what court it is in which he is sued. Proper diligence would suggest that said complaint should be exhibited to his attorney, and, if not produced by him, the attorney, in the exercise of proper diligence, should inquire for it. If they cannot understand each other, an interpreter should be secured. As was said in an early case: “The law exacts diligence from suitors; and, if necessary, parties must, in the preparation of their causes, combat and overcome difficulties.” — Allington v. Tucker, 38 Ala. 655, 657. We cannot say that the failure of the client and the attorney to understand each other is a sufficient showing of diligence.

The judgment of the court is affirmed.

Dowdell, C. J., and Denson and Mayfield, JJ.,. concur.