Weems v. Weems, 73 Ala. 462

Weems v. Weems

73 Ala. 462 | Ala. | 1882

SOMERYILLE, J.

— This appeal is from an interlocutory decree of the chancellor, dissolving an injunction which was-procured to enjoin a judgment at law, rendered in favor of the appellee against Joel Weems, one of the appellants, a non compos, who defended by his guardian.

An injunction may be dissolved, either because the answer denies the facts on which the equity of the bill rests, or because the bill is wanting in equity, assuming all the facts alleged to be true. — Miller v. Bates, 35 Ala. 580; Bishop v. Wood, 59 Ala. 253. The chancellor does not seem to have considered the equity of the bill, but places his ruling upon the denials of the answer alone.

The principle governing in such cases is, that where the answer contains a full, explicit and complete denial of the allegations on which the equity of the bill rests, the injunction should generally be dissolved. — Bishop v. Wood, 59 Ala. 253; Saunders v. Cavett, 38 Ala. 51; Mallory v. Matloch, 10 Ala. 595; 1 Brick. Dig. 677, § 548. There are exceptional cases in which, however, this rule is not applied. — Chambers v. The Ala. Iron Co., 67 Ala. 353; Miller v. Bates, 35 Ala. 580 Rembert v. Brown, 17 Ala. 667.

The decree of the chancellor in this case is undoubtedly correct. The answer of the respondent denies, unequivocally and explicitly, every evennent in the bill tending to impute fraud in the procurement of the judgment sought to be enjoined, and every allegation of fact assailing the justness or correctness of the demand on which the judgment was based,, or even bringing in question the fairness of the trial, or the truthfulness of the testimony rendered. There is a complete denial also of the facts alleged in support of the averment of sv/rprise, as well as of those allegations made with the view of exculpating the complainant’s guardian from fault or negligence in having failed to make defense of the suit at law. Although the complainant was á person of unsound mind, his guardian could be lawfully sued for any contract, tort, default or miscarriage of himself, as a legal ward, which was made, done or suffered before such ward was placed under guardianship. Code, 1876, § 2795. The negligence of the guardian, or his-attorneys, must, therefore, to a certain-extent at least, be imputed to the ward, as that of the trustee is often visited upon the ceslui que trust. — Broda v. Greenwald, 66 Ala. 538.

The defense sought to be set up in the bill against the judg*465ment of the appellee could clearly have been made in a court of law, and where this is the case, no complainant can obtain relief in equity without averring and proving three states of fact: (1) That he has a good and meritorious defense to the entire cause of action, or to so much of it as he proposes by his bill to litigate; (2) that his failure to defend at law was not attributable to his own omission, neglect or fault; (3) that it was attributable to fraud, surprise, accident, or some act of his adversary. — Hair v. Lowe, 19 Ala. 224; Collier v. Falk, 66 Ala. 223; Norman v. Burns, 67 Ala. 248; James v. James, 55 Ala. 525; 1 Brick. Dig. 666, § 376. It is obvious that the denials of the answer in the present case go to these three vital points in the case made by the bill; and this was sufficient to justify the dissolution of the pending injunction.

The decree of the chancellor must be affirmed.