39 Ala. 535 | Ala. | 1865
Tbe complainant, having been assessed witb a tax on $100,000 boarded, applied to tbe court of county commissioners to correct tbe assessment. Tbat court, overruling the appbeation to be absolved entirely from tbe assessed tax on money boarded, held that tbe assessor bad committed an error in bis determination of tbe amount to be taxed, and adjudged tbat $62,728 was tbe correct amount to be assessed. Tbe judgment of tbe court of county commissioners was carried by certiorari to tbe
We have entertained doubts whether the act of 1862 refers to assessments made under the previous laws ; but we think the better opinion is that it does, and we so decide, without argument, as the counsel on both sides agree that such position is correct.
We are not sure that the diversity between the facts as alleged in the complainant’s bill, and as recited by the judgment-entry, is a material, matter. But let it be conceded that it is; the complainant then occupies the position of one against whom a judgment has been rendered, in which there was error available in a court of law, and of which he was prevented from availing himself by the failure of the court which rendered the judgment to recite fully and correctly the facts upon which its judgment was founded. The complainant can come into chancery, to set aside the judgment, because he was prevented from obtaining relief at law by the cause above stated, only when the prevention was the result of “ fraud, accident, or the act of the opposite party, unmixed with fault or neglect on Ms part.” McCollum v. Prewitt, 37 Ala, 573; French v. Garner, 7 Porter, 549. The complainant is not alleged by his bill to have called the attention of the court of county commissioners, during its sitting, to its defective statement of the facts, and asked a correction or amendment of that statement, or to have presented, by way of bill of exceptions or otherwise, a correct statement of those facts. On the contrary, he states in his bill, that he was ignorant that the statement of facts was incorrect and defective, until the cause came up in the circuit court. With these things, presented in the bill, we cannot say that the prevention of a fair revision in the circuit court was “ unmixed with fault or neglect” on the part of the complainant.—Stein v. Burden, 30 Ala. 270.
The complainant alleges the discovery of some new facts after the judgment was rendered. If those facts were at all material, the failure to discover was the result of the most obvious inattention and neglect.
Whatever may have been the rights of the complainant
The decree is affirmed.