71 So. 51 | Ala. Ct. App. | 1916
Lead Opinion
This is an appeal from the final judgment of the lower court refusing to grant a statutory rehearing applied for under section 5372 of the Code, known as the “four months statute,” and is the proper remedy for reviewing such action of the lower court.—End. Dep. Dis. G. L., etc., v. Harvey, 6 Ala. App. 245, 60 South. 602, and cases cited.. The reporter will set out the petition, as amended, for rehearing, that was so denied. The court sustained a demurrer to it, which presents as the only point for review the question as to whether or not the facts alleged in the, amended petition are sufficient, if true, to show either “surprise, accident, mistake, or fraud, without fault” on the part of petitioner or her counsel, within the' meaning of those terms as employed in said section 5372 of the Code.—Traub v. Fabian, 160 Ala. 210, 49 South. 240; Wheeler v. Morgan, 51 Ala. 573; Walker’s Case, 54 Ala. 577; North’s Case, 49 Ala. 385; Brock’s Case, 65 Ala. 79; Blood’s Case, 65 Ala. 103.
We cannot, it seems to us, with due regard for the decision of our Supreme Court, which are binding on us, hold otherwise than that the trial court did not err in sustaining the demurrers to the petition, as amended, and in denying the rehearing. It is no doubt true, as is contended, that the averments of the petition clearly show that the failure to make defense against the judgment prayed to be set aside was due to the mistake or oversight of the clerk of the court in stating, in the printed dockets of the cases pending in the court that were distributed as pamphlets among the bar for their information, the case of W. G. Tyler against the petitioner, Myrtle S. Williams, in a different style or way from that in which it was stated on the regular dockets of the court; and it is no doubt further true that this difference in the statement of the case led petitioner’s attorneys, as it naturally would under the circumstances as disclosed in the petition, to overlook the fact that the case stated and styled on the printed docket or pamphlet as “W. G. Tyler v. M. S. Williams,” and. which failed to show the appearance of any counsel for defendant, was the same case as was stated and styled on the regular
It may be that where the clerk, as in this case, for his own convenience and that of the bar, prepares and furnishes printed lists of the cases pending for trial, together with a statement of the day they are, respectively, set for trial, counsel interested would have a right to rely on the information there imparted as to the date set for trial, the same as he would have a right to rely on information imparted in a letter from the clerk written by him in answer to a request from counsel for information as to when a particular case was set for trial, and that, if a case appearing on such list was taken up and tried on any day previous to the day it was there stated as set for trial, and this without a change of notice to counsel, who, relying in good faith on the first notice, was not present at the trial, then this would probably furnish good ground for rehearing (Renfro v. Merryman, 71 Ala. 195; Womack v. Bookman, 34 Ala. 38), although the clerk-may have made a mistake in the first instance by having given the wrong, instead of the correct, date that the case was set for trial, and although the case may have been tried on the correct date that had, at the time of the giving of the wrong date, been actually set for the trial. A party, we think, should not in this character of proceeding be charged with fault for having relied in good faith on information as to the date a case is set for trial, •although such information is incorrect, if it is imparted by the clerk, since he is the officer known to be the maker and custodian of the records which contain that information, and since, therefore, it is naturally tó be supposed that he would give only cor
The recent case of Henley v. Chabert, 189 Ala. 258, 65 South. 993, decided by our Supreme Court, settles this proposition. In that case the bill alleged, as one of the grounds upon which the rehearing was prayed: “That the said case of Henley against these orators [which as previously averred was pending in the circuit court of Walker county, and in which complainants had, as here, seasonably filed a demurrer to the complaint] was never set down for trial * * * until some time in the month of October, 1912,” etc.; “that on the 22d day of October, 1912, without notice to orators, or either of them, or their attorneys, a judgment by default was rendered by the circuit court of Walker county, of which neither of these orators or their attorneys had any notice; that on, to-wit, the 21st day of November, 1912, a writ of inquiry was issued in the case, without any notice to either of these orators or their attorneys, and judgment rendered against orators in the sum of $2,000; and that prior to that time a list of the cases in the circuit court of Walker county, which were set for different days between November 11, 1912, and January 23, 1913, was published and furnished the several attorneys living in Jasper [where complainants’ counsel lived], and practicing in said court, and that nowhere in said published list or pamphlet in said cause did it state or show that said case of Henley against these orators was set for trial,” etc.
This ground of the bill for rehearing our Supreme Court disposed of very briefly by saying: “Nor is it sufficient ground for relief that the cause was not set down for trial until in the month of October, and the list of cases made out by the clerk and published did not disclose the case of respondent against the complainants. No diligence or effort on the part of complainants to ascertain the status of the cause is shown.”—Henley v. Chabert, supra, 65 South. 993.
The court cited in support of this holding the case of Renfro v. Merryman, 71 Ala. 195, where it was held that the claimant in a'case of the trial of the right of property was not without fault, and hence was not entitled to a rehearing where it appeared that he attended court on Wednesday and Thursday of the
The case as made by the instant petition, where from the allegations of the petition it appears that, on the printed docket or pamphlet furnished by the clerk to petitioner’s counsel, the cause pending for trial against her as defendant was not stated -or described with that fullness and particularity that it was stated or described on the regular dockets of the court, and that as a result of this difference in the statement or description of the cause petitioner’s counsel were misled, and overlooked the fact that it was one and the same cause, is certainly no stronger than the case of Henley v. Chabert, supra, where, as seen, it appeared that on the printed docket or pamphlet, furnished counsel the cause pending in the court against petitioner as defendant was not stated or described at all, but was omitted entirely therefrom. The fact that the cause that was pending for trial against petitioner here as defendant was so meagerly described in the printed list of pending causes that was furnished petitioner’s • counsel as not to call such counsel’s attention to the fact that it was the same cause as that in which they had been previously employed to represent petitioner and wherein they had already filed a demurrer, surely puts petitioner in no better position or standing for a rehearing than if a statement or description of said cause had been left off or omitted entirely from said list.
But we cannot see that these facts should make any difference in the application of the principle here involved. Attorneys, whether rural or urban, whether enjoying a large or small practice, whether employed in many or only a few cases, and whether those cases are pending in a court with heavy or light dockets, are supposed to know and keep in mind, by memory if they be few, and by memorandum if they be many, the cases in' which they have been employed; and when a clerk furnishes an attorney with a printed list of the cases pending in a particular court in which that attorney practices, then, although it is customary for ‘the clerk to furnish such list, and although ordinarily it is reliable, it is the duty of the attorney to look over the list and see if the cases in which he is employed are listed, and, if not listed, to make inquiry of the clerk as to their status, because the attorney, upon not finding" on such list a case in which he has been employed and which he knows is pending for trial, must naturally infer that there has been an oversight in some way on the part of the clerk in' omitting it.
The principles governing the granting of rehearings under the statute (Code, § 5372) here invoked are the same as those obtaining had relief been sought by bill in equity, since the object of the statute was merely to provide a less expensive and more speedy remedy than the latter and as cumulative of it.—Renfro v. Merryman, supra; Evans v. Wilhite, 167 Ala. 587, 52 South. 845; Todd v. Leslie, 171 Ala. 625, 55 South. 174. As a statement of these principles, and in fortification of our application of them to the case at bar, it is not inappropriate to here quote briefly from the decisions of our Supreme Court, which we do as follows : “ ‘A proper and due regard for the peace and interests of society requires strictness and caution in exercising the power to disturb the decrees and judgments of other courts of competent or concurrent jurisdiction, and reopening controversies, which it is the policy of the law to quiet. * * * To successfully invoke the interposition, it is not sufficient that wrong has been done, but it must be manifest that the wrong occurred because of accident, surprise or fraud, or the act of the opposite party, and without fault or neglect on the part of the party complaining. A concurrence of injustice committed and freedom from fault and negligence is an indispensable condition to the exercise
Affirmed.
Rehearing
ON REHEARING.
On application for rehearing, it is said in appellant’s brief:
“This court, bowing to what it conceives to be-the authority of the Supreme Court in the case of Henley v. Chabert, concludes that this case presents no stronger appeal for relief than that case, and holds that if a lawyer, upon the perusal of a printed docket setting out a number of cases, fails to find a particular case of his upon that particular docket, he must conclude that something wrong had happened, because the case necessarily should have been on that docket. * * * This court surely knows that all the cases pending upon the dockets of the city court of Birmingham are not set at one setting — that all are not put upon any printed docket issued for the information of litigants and attorneys. A docket * * * covers only about three months of actual court work, and it would be preposterous to think of setting all of the causes pending in the court within that period of time. Therefore, in the city court of Birmingham, it could not follow from an omission of a particular case from a printed docket that the cause was wrongfully omitted.”
We acquiesce in the correctness of the conclusion expressed, but not in one of the premises upon which it is rested. This court cannot, as that conclusion assumes, take judicial knowledge that the clerk of the city court of Birmingham does not, at the commencement of the term of said court, or other time, and at one setting, set for trial all cases at issue then pending on the docket of said court, and that, consequently, the printed list furnished by him to attorneys does not, and is not intended to, cover all cases at issue pending on said docket, but that said clerk, at
This presumption, however, cannot be indulged as to the last list of the series'of lists to be furnished for the term; for when counsel, who know that the particular cause has not appeared on any previous list served during the term, and who know, as the petition here shows, that that cause is at issue, undisposed of, and pending for trial at that term on the dockets of said city court, fails to find it listed on the last of the series of printed lists to be furnished for the term — it not having appeared on
Furthermore, if in fact it was the practice and custom of the clerk to furnish during the term, not one printed list purporting to cover all the cases on the docket at issue for that term, as we inferred in the opinion, but to furnish, as is now claimed, several lists — one at the commencement of the term and others from time to time thereafter as he sets the cases for trial, each covering only those cases at issue on the docket as are set for a particular three months — and if the list referred to in the petition as furnished counsel was not the last of the series to be furnished for the term, these facts, which would, as seen, distinguish this case from the Henley-Chabert Case, should have appeared from the allegations of the petition. We cannot take judicial knowledge of them, even though they be facts, since they are not matters of common knowledge, as is insisted. — 17 Am. & Eng. Ency. Law, 892.
Appellant next urges that the allegations of the- petition are sufficient to show that these are the facts. In his brief on t.hip point it is said: “The sworn petition necessarily shows it. On page 2 it avers that the dockets of the city court of Birmingham contain a vast number of cases, ‘more than 2,000.’ The same petition shows that the printed docket contained ‘more than 1,000 cases.’ ”
But counsel overlook the fact that, while it is true that the petition does show that the dockets of said city court “contained more than 2,000 cases” — including, we must infer, those at issue and those not at issue — it fails to show how many of them were
We are unable, in the light of these principles, to find that the petition makes a case that can be differentiated from the Henley-Chabert Case, where, we repeat, it was said by our Supreme Court: “Nor is it sufficient ground for relief that * * * the list of cases made out by the clerk and published did not disclose the case of respondent versus complainants. No diligence or effort on the part of complainants to ascertain the status of the cause is shown.”
In that case the printed list published by the clerk furnished, as pointed out in our opinion, no information at all as to the status of the particular cause, but, by accident or mistake of the clerk, such cause was omitted entirely from said list. In the instant case, while the printed list so furnished by the clerk does not contain information, and that correct, with respect to the
Hence we have the identical situation' as presented in the Henley-Chabert Case — not a case where the clerk furnished incorrect information as to when a particular cause was set for trial, but a case where he furnished no information at all as to when such cause was set for trial; consequently a case where, as in the Henley-Chabert Case, counsel were under duty, if they would be “without fault,” which the statute (Code 1907, § 5372) requires as a condition to relief, to make inquiry of the clerk as to the status of said cause, which would have resulted in information as to the day said cause was set for trial. The fact that in the Henley-Chabért Case the relief was ought by bill in equity, rather than, as here, by petition at law under the four months statute (Code 1907, § 5372), does not alter the result; since, as pointed out in the authorities cited in the original opinion, it is indispensable to relief in either case that the judgment prayed to be set aside should have been obtained, not only as the result of “surprise, accident, mistake, or fraud,” but “without fault” on the part of the party seeking relief, or of his or her counsel. What is, and what is not, “without fault” in such a case, are matters on which equity and the law cannot and do not differ. Consequently, if in equity a complainant is not “without fault,” but is lacking in “due diligence,” who fails to make inquiry as to the status of his or her cause, which is omitted from a printed list furnished by the clerk, but which complainant or his or her counsel knows to be at issue and pending for trial at that term of the court, then equally at law a petitioner for rehearing under the
Nor can the case at bar be differentiated from the HenleyChabert Case by the fact that in the instant case it appears that it was the custom of the clerk to furnish printed lists, while it does not so appear in the Henley-Chabert Case. Such a custom vel non on the part of the clerk is, it seems to us, entirely immaterial to the question of “due diligence” on the part of counsel, since we are unable to see why an attorney would not have as much right to rely on a printed list furnished by the clerk for the first time and purporting to contain a statement of all the cases on the docket that have been set for trial, together with the several days on which they have been respectively so set, as. he would have to rely on such a list after' the clerk had established a custom of furnishing it, because, as we see it, the thing which warrants an attorney in relying on the correctness of information imparted by such a printed list so furnished by the clerk is not the fact that the clerk has established a custom of furnishing such a list, but the fact that the list emanates from the clerk— the officer of the court and the maker and custodian of its records, wherein that information so communicated by him reposes —who, as such officer, has access to that information, and is supposed, therefore, to furnish it correctly when he undertakes to do so, whether verbally, by letter, by printed lists, or otherwise. For this reason — that is, because the clerk is the officer of the court — it is our view, as expressed in the original opinion, that attorneys and litigants have a right to accept as correct, and to act upon it in appearing at court, all information actually imparted by the clerk as to when a particular cause is set for trial, however that information be imparted, whether by printed lists or otherwise, and although it be incorrect, but that whenever the clerk fails to impart any information on that subject, as was true in the Henley-Chabert Case, and as is true in the instant case— as so appears from the analysis we have heretofore given of this case — then it is the duty of counsel, if they would avoid being lacking in “due diligence” under the four months statute, to make inquiry and ascertain when the cause, with reference to which the clerk has furnished them no information, and which
The foregoing, which is in line with what was said in the original opinion, expresses the views of the writer, which, if they had been approved by the court, would have resulted in overruling appellant’s application for rehearing. However, the other members of the court, my Associates, Judges. Pelham and Brown, who constitute a majority, have, since the original opinion was written, changed their views, and think, for reasons as severally expressed by them in the following opinions, that the application for rehearing should be granted. What I have said is sufficient to indicate why I am of opinion that each of them is in error in supposing that this case can be distinguished from the Henley - Chabert Case on either of the grounds set forth in their respective opinions. Judge Pelham is at fault, I think, in holding, as the basis for the distinction drawn by him, that not as much diligence is required to be shown on the part of counsel when relief against a judgment is sought under the four months statute, like in the present case, as when sought by bill in chancery, like in the Henley-Chabert Case. On the other hand, the holding of Judge Brown, that the two cases may be distinguished, is based upon a misconception, I think, of the very basis of fact upon which relief is sought in the present case, which misconception is clearly disclosed by the following statement in his opinion, to-wit: “Would a reasonably careful attorney, under these circumstances,.have relied on the information furnished by the printed docket furnished by the clerk? We cannot escape the conclusion that he would be warranted in so doing, and that petitioner’s attorney had a right to rely on the information it furnished.”
As we have hereinbefore pointed out, the petition, when properly analyzed, predicates the right to the relief sought, not upon the ground that the printed list furnished any information as to the status of petitioner’s cause, and that such information was incorrect, but upon the ground that said printed list furnished, in effect, no information whatever as to the status of petitioner’s cause, since it described said cause in such a way as that its identity was not, even in the exercise of reasonable diligence, discoverable by petitioner’s counsel. Consequently, we repeat, this is a case, like the Henley-Chabert Case, where the clerk imparted no information at all by the printed list as to the status
In pursuance of the holding of the majority of the court, the application for rehearing is granted, judgment of affirmance set aside, and a reversal ordered.
Petition for rehearing under section 5372 of the Code, providing: “When a party has been prevented from making his defense by surprise, accident, mistake or fraud, without fault on his part, he may, in like manner, apply for a rehearing at any time within four months from.the rendition of the judgment.”
The judgment against which relief is sought was rendered on the 7th day of January, 1915, and the original petition for rehearing was filed on the 13th day of March, 1915. A demurrer was sustained to the original petition and the petition as amended, and, the petitioner declining to plead further, judgment dismissing the petition was entered, and from that judgment this appeal is prosecuted.
It is well settled that the proceeding under consideration here is not a continuation of the original suit, but is an independent
The city court of Birmingham is presided over by four judges, and the act of the Legislature approved February 26, 1907, regulating the setting of cases for trial provides: “The cases in said court shall, under the direction of said judges, be arranged on four separate dockets. Each of said judges may be separately engaged at the same time, or at different times, in the trial of different cases. One of. said dockets shall be made up of chancery cases; one, of cases in which juries have not been demanded; one of appeal and certiorari cases, and cases in assumpsit, ejectment, trover and detinue, in which juries have been demanded; and one of all other cases in which juries have been demanded; but in the discretion of the judges, more than one of the judges may be engaged at the same time in the separate trial of different cases on the same docket. The judges may, in their discretion, alternate in the trial of the different dockets, either monthly or at such times as may to them seem proper. They shall have the control and direction of the setting of all cases, and cases shall be set for trial as nearly as practicable in the order in which they are brought.” — Local Acts 1907, p. 256.
But it is not enough that the judgment, was rendered and petitioner’s right to make her defense cut off by the accident or mistake of the clerk in failing to correctly transcribe the names of the party and her attorneys on the trial docket; she must go further, and show that she was not guilty of negligence in respect to making her defense to the action. Otherwise stated, she must show that the judgment was rendered because of accident or mistake on the part of the clerk, unmixed with negligence on her part or the part of her attorneys, whose negligence, if found, must be charged to her.—Evans v. Wilhite, supra; Broda v. Greenwald, 66 Ala. 538. This is the crucial point in the case, on which its result must turn. She undertakes to acquit herself of such negligence by showing that she employed a firm of reputable lawyers in the city of Birmingham to represent her in making her defense; that within the time allowed for pleading they appeared for her and filed appropriate pleadings in the case, and their names were duly entered by the clerk on the appearance docket; that there is an enormous amount of litigation in the courts at Birmingham,. and a vast number of pending causes on their dockets, averring that on the dockets of the city court alone there were “more than 2,000 cases;” that because of
The petition then avers that the clerk issued such printed docket, and petitioner’s cause was improperly entered thereon, and the names of her attorneys wholly omitted therefrom; said docket contained “more than 1,000 cases” set for trial, and after diligently examining this printed docket they did not dis
The statute confers upon the judges of the city court of Birmingham the power to make rules of practice regulating the trial and disposition of causes in the court, and the writer entertains the opinion that the sanction by the officers of the courts of the long-established custom shown by the petition as to the manner of setting cases for trial and giving notice thereof is tantamount to establishing a rule of court to that effect, and that litigants and their attorneys were justified in looking to this printed docket for information as to the date cases were set for trial. This conclusion is induced by the fact that a great body of our law is the growth of custom and usage governing the conduct of men and fixing their rights. — 12 Cyc. 1030. However this may be, the presumption as to the regularity of official acts has been gradually extended to acts unofficial, and the courts universally hold: “That it is reasonable to assume that the usual and customary modes of business have been adopted in a given case, until some departure from the regular mode has been shown.” — Jones on Evidence, § 48. What might be negligence under some circumstances at some time or place may not be negligence under other circumstances at another time and place. All the surrounding attendant circumstances must be taken into account, if the question involved is one of negligence, such as the. opportunity for deliberation, degree of danger, and many other considerations of like nature, affecting the standard of care which may be reasonably required in the particular case.” — 29 Cyc. 417, 418. That negligence is “the failure to do what an ordinarily prudent person would have done under the circumstances.”—Alabama City, Gadsden & Attalla R. R. Co. v. Bullard, 157 Ala. 618, 47 South. 578. That “what is negligence and what is due care may depend upon the custom and habit of people in the same place and under similar circumstances. So the drivers of horses and carriages on the highways, and the masters or pilots of ships and steam
In view of these well-established principles of law, and the custom shown by the petition and admitted to exist by the demurrer, the question is: Would a reasonably careful attorney, under these circumstances, have relied on the information furnished by the printed docket furnished by the clerk ? We cannot escape the conclusion that he would be warranted in so doing, and that petitioner’s attorney had the right to rely on the information it furnished. Furthermore, the printed , docket was an exact copy of the trial docket on which the case was set, the error occurring in transcribing the case onto the trial docket; so, if the petitioner’s attorneys had examined the trial docket, they- would have gained no more information than appeared in the printed docket which they did examine.
The case of Henley v. Chabert, supra, 65 South. 993, is easily distinguished from the case here presented. The gravamen of the bill in that case was alleged fraud, practiced by the plaintiff in the action, in misleading the defendant by oral statements as to what disposition he intended to make of the case; yet it was shown that he refused to put the agreement in writing, thus putting the defendant on notice that he would not be absolutely bound by his statements. In that case there.was no averment of a long-prevailing custom as to the issuance of a bar docket for the information of litigants and their attorneys, and their custom to rely upon such docket. The only averment in that record touching this matter was: “And that prior to that time [the rendition of the judgment] a list of the cases in the circuit court of Walker county which were set for trial on different days between November 11, 1912, and January 23, 1913, was published and furnished the several attorneys living in Jasper practicing in said circuit court, and that nowhere on said published list or pamphlet of said causes did it state or show that the said case of J. M. Henley against these orators was set for trial.”
The case of Renfro v. Merryman, 71 Ala. 195, is also easily distinguished. In that case the complainant and his attorney knew that the case was triable at the term of the court at which the judgment was rendered, and attended the court for the purpose of trial, and after examining the trial docket and finding the case had not been entered thereon:, without calling the matter to the attention of the court, absented themselves from the court. In that case the parties had knowledge that the case stood for trial, that the clerk had failed in his duty, and, relying upon his negligence and the unwarranted assumption that he would continue his negligence, they left the court. This was a positive act of negligence, based upon an unwarranted assumption that the officer would not discharge his official duty.
The case at bar is more nearly analogous to.the case of Evans v. Wilhite, supra, where the clerk entered upon the minutes an order continuing the case; and there it was held that the defendant was justified in relying on this entry, and that no further proceedings were warranted without notice to him.
“A mistake of fact, provided it be honest and genuine, and such as a man might reasonably make, will be a sufficient excuse for not defending an action at law, and will warrant a court of equity, if the judgment be against conscience, in enjoining its enforcement.”—23 Cyc. 1012 (X, B, 9, d) ; Brown v. Jones, 44 Ga. 71; 1 Black on Judgments (2d Ed.) §§ 335, 345, 381.
“As a general rule, any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself there, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agent, will authorize a court of equity to enjoin the adverse party from enforcing such judgment.”—23 Cyc. 991 (X, B, 1) ; Foshee v. McCreary, 123 Ala. 493, 26 South. 309; Watts v. Gayle, 20 Ala. 817; Stinnett v. Mobile Branch State Bank, 9 Ala. 120; 23 Cyc. 1010 (X, B, 9).
The existence of a meritorious defense to the action, which the complaining party was prevented from making by fraud, accident, or mistake, unmixed with negligence on his part, is suf
The petition was not subject to the demurrers interposed thereto, and they should have been overruled.
Concurrence Opinion
I concur in the conclusion reached by Judge Brown. There is no question in my mind but that, philosophically considered, that determination of the question presented by the record in this case is sound; but I had entertained the opinion that the case of Henley v. Chabert, 65 South. 995, was in the way of such a holding on our part, as we are required by statute to conforto our holdings to those of the Supreme Court, (See opinion of the Court, per THOMAS, J., on the original consideration of this case, based on the holding in Henley v. Chabert, supra.)
I have, on this application, again carefully examined the case of Henley v. Chabert. That case is distinguishable from the case in hand, in the first place, because the Supreme Court, in that case, was applying a stricter and more inflexible rule than is applicable here. In the Henley-Chabert Case the Supreme Court was considering whether the bill in equity, as framed in that case, was sufficient, or without equity, in its allegations seeking to enjoin a judgment recovered against the complainants in a court of law. In passing upon that question, due regard and consideration were given to the rule of “great strictness and inflexibility” against a judgment recovered in a court of law being supplanted by a proceeding in chancery. I think it fairly inferable, from the opinion read as a whole, that a different rule might have been made to apply to the subject-matter under consideration if the case presented there, as here, had been under the “four months statute” (Code, § 5372), where the parties are shown to have exercised due diligence in making application to the law court for relief, rather than, after long delay, seeking the aid of a court of chancery, as were the facts disclosed by the record in the Henley-Chabert Case and pointedly referred to in the opinion in that case, and which entered into the consideration of the conclusion reached in that case.
The case in hand is also distinguishable from the case referred to, as above cited, in that the facts set up in the petition (which are to be taken as admitted on demurrer) aver that the petitioner