Barrow v. Lindsey

• Decision Date: 31 January 1935
• Docket Number: 5 Div. 186.
• Parties: BARROW v. LINDSEY.
• Court: Alabama Supreme Court

159 So. 232

230 Ala. 45

BARROW v. LINDSEY.

5 Div. 186.

Supreme Court of Alabama

January 31, 1935

Rehearing Denied Feb. 21, 1935.

Appeal from Circuit Court, Chambers County; W. B. Bowling, Judge.

Bill to avoid a former decree by Susie Mae Barrow against John Lindsey. From a decree sustaining a demurrer to the bill complainant appeals.

Affirmed.

W Howell Morrow, of Lanett, and Holley & Milner, of Wetumpka for appellant.

Jacob A. Walker and O. P. Lee, both of Opelika, for appellee.

KNIGHT Justice.

Bill in double aspects-one as a bill of review, and the other as an original bill in the nature of a bill of review, to impeach a decree of the chancery court obtained, so it is alleged, by fraud, accident, surprise, or mistake.

While some of the pleadings culminating in the decree attacked by the bill are brought forward in the bill now before us, confessedly the bill fails to present a complete record of the case, noticeably the decree. We have no reference, of course, to the omission of the evidence upon which the decree was rendered.

The record before us discloses that the respondent to the present bill filed thirty-nine "separate grounds of demurrer seeking to test said bill from several angles." This much appears from the decree of the court appealed from in this case. These demurrers do not appear in the record. The cause is before us on appeal from the decree of the court sustaining the demurrers to the bill.

The court sustained respondent's demurrers to the complaint, and in view of the fact that the grounds of demurrer do not appear in the record, we are required to search the pleading "to ascertain if a tenable ground of demurrer exists," and, if so, to sustain the decree of the court. Liverpool & London & Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880; Richardson v. Mertins, 175 Ala. 309, 57 So. 720; Leverett v. Garland, 206 Ala. 556, 90 So. 343; Vogler v. Manson, 200 Ala. 351, 76 So. 117.

The bill, as one of review, was clearly without equity. It discloses no error of law apparent upon the record. The record shows that the court rendering the decree had jurisdiction of the subject-matter, and confessedly, as shown by the record, acquired jurisdiction of the parties. The original bill of complaint, certainly, in some of its alternative grounds for relief, stated a cause of action, sufficient in law to justify the cancellation of the two deeds from J. N. Barrow, the husband, to his wife, the complainant here.

To support a bill of review for error of law apparent, "there must be error in substance, of prejudice to the party complaining, apparent on the face of the pleadings, proceedings or decree. * * * Comparing the decree with the pleadings and other proceedings, it must be apparent that the court has reached and declared an erroneous conclusion of law, as to the rights of the parties. Whatever of error other than this, which may have intervened-errors in the regularity of the proceedings, erroneous deductions from the evidence-must be corrected by writ of error, or by appeal; it is not the office of a bill of review to inquire into and correct them." McCall v. McCurdy, 69 Ala. 69-71; Jordan v. Hardie et al., 131 Ala. 72, 31 So. 504; Turner v. Turner, 193 Ala. 424, 69 So. 503.

If the evidence, upon which the decree was rendered, had been brought forward in the present suit, we would not be permitted to consider it to see if it supported the conclusion of the court. We are bound to take the facts apparent upon the record as true, and the only question is whether, the facts being true, the decree is free from error. McDougald's Adm'r v. Dougherty, 39 Ala. 428; Smyth v. Fitzsimmons, 97 Ala. 458, 12 So. 48; Banks v. Long, 79 Ala. 319; Taylor et al. v. Crook, Adm'r, et al., 136 Ala. 354, 34 So. 905, 96 Am. St. Rep. 26.

"Whether there is evidence to support a decree, whether the court has misjudged the evidence, is not an inquiry which can be made on a bill of review. If in that respect the court errs, the error can be corrected only on appeal." Ashford v. Patton, 70 Ala. 483. And we may here say that the record discloses that complainant had ample opportunity to have prosecuted an appeal, and have had this court to review the proceedings. However, such right and opportunity to appeal, though unavailed of, would be no barrier to the filing of a bill of review to correct errors of law apparent upon the record.

As a bill of review, the present bill is wholly wanting in equity. Assuming, as we must, that a proper demurrer was directed to this phase of the bill, the court properly sustained the same.

This brings us to a consideration of that phase of the bill which seeks to impeach the decree for fraud, accident, surprise, or mistake. The bill does not aver any fact tending in the remotest degree to show fraud in the procurement or rendition of the decree. The element of fraud may thus be here and now eliminated from further consideration.

Was the decree obtained through surprise, accident, or mistake, and, if so, was the complainant free from fault or negligence in allowing the decree to be entered, assuming that the complainant had a meritorious defense to the original suit? Confessedly, if the complainant's fault or negligence contributed to her present predicament, she cannot complain.

A court of equity has the undoubted jurisdiction to set aside a judgment at law procured through fraud, accident, or mistake, when the party complaining has a meritorious defense to the action, and was without fault or negligence himself in permitting the rendition of the judgment. Hanover Fire Ins. Co. v. Street, 228 Ala. 677, 154 So. 816; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Nixon v. Clear Creek Lumber Co., 150 Ala. 604, 43 So. 805, 9 L. R. A. (N. S.) 1255; Sharp v. Edwards, 203 Ala. 205, 82 So. 455; Fowler v. Fowler et al., 219 Ala. 453, 122 So. 440; Fowler v. Nash, 225 Ala. 613, 144 So. 831; Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417. And this power, as we have above indicated, is possessed by a court of equity, over its own decree.

This court is committed to the proposition that relief against decrees in equity may be obtained by original bill in the nature of a bill of review. Ezzell et al. v. First National Bank of Russellville, 223 Ala. 353, 135 So. 582; Stover v. Hill, 208 Ala. 575, 94 So. 826; Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Sharp v. Edwards, 203 Ala. 205, 82 So. 455; Davis v. Davis, 211 Ala. 317, 100 So. 345; Newlin Fernley & Co. v. McAfee, 64 Ala. 357.

In 21 Corpus Juris, § 933, p. 779, the author, on the subject of "Surprise, Accident or Mistake," observes: "While generally the remedy is by petition in the cause, yet, unless there is some statutory provision to the contrary, and except where plaintiff's own fault has contributed to his predicament, an original bill lies to impeach a decree obtained through surprise, accident or mistake."

We entertain no sort of doubt that a court of equity may, in a proper case, upon proper averment and proof, grant relief from a decree rendered in an equity court to the same extent, and upon the same grounds, that relief could be had from a judgment at law, obtained by fraud, accident, or mistake, unmixed with negligence on the part of the defendant in the judgment.

So the sole question is: Does the bill show that the complainant's predicament is not due, either in whole or in part, to her own fault or negligence?

In her effort to show that the decree was obtained by surprise accident, or mistake, without fault or negligence on her part, the complainant makes the following averment (omitting name of attorney), and in this aspect of her case rests the equity of her bill thereon: "Fifth. Complainant further shows unto the court that she failed to answer said bill, as provided in said court's decree overruling the demurrer to said bill, and failed to make her defense by reason of fraud, accident, surprise or mistake, which consisted in this: That unknown to her, her attorney, * * * long prior...