Evans v. Wilhite

• Court: Supreme Court of Alabama
• Writing for the Court: MAYFIELD, J.
• Citation: 52 So. 845,167 Ala. 587
• Parties: EVANS v. WILHITE ET AL.
• Decision Date: 02 June 1910

52 So. 845

167 Ala. 587

EVANS
v.
WILHITE ET AL.

Supreme Court of Alabama

June 2, 1910

Appeal from Chancery Court, Cullman County; W. H. Simpson, Chancellor.

Action by Charles M. Evans against J. D. Wilhite and others. A demurrer to the bill was sustained, and a motion granted to dissolve an injunction, and the bill was finally dismissed for want of equity and plaintiff appeals. Reversed and remanded. [52 So. 846]

Brown & Kyle, for appellant.

F. E. St. John, for appellees.

MAYFIELD, J.

Appellant filed his bill to set aside a judgment against him in a court of law, and to enjoin its enforcement pending the suit.

The theory and allegations of the bill, in short, were that the judgment was obtained by fraud on the part of appellee; that the cause was continued for the term by agreement of parties, and that after appellant and his attorney had left court, appellee, by fraudulent representations, had the court to set aside the order of continuance and to proceed to trial, and thus by fraud procured the judgment. Appellee demurred to the bill and moved to dissolve the injunction. His demurrer was sustained, and motion granted as to the original bill and the amended bill; and the bill as amended was finally dismissed for want of equity. This was error. If the averments of the bill were true--and on demurrer and motion they must be so treated--the complainant was entitled to the relief prayed; hence, the bill should not have been dismissed, nor the injunction dissolved. Equity has original and independent jurisdiction for the purposes for which this bill was filed.

The probable theory upon which the chancellor proceeded was that the bill failed to aver that complainant was ignorant of the judgment being taken against him, until after the expiration of four months, within which time he could have obtained the relief desired by application to the circuit court which rendered the judgment; in other words, that the bill in this respect failed to show due diligence, and therein failed to show that complainant did not have a complete and adequate remedy at law. If this be the theory upon which the chancellor dismissed the bill, it is untenable. While the four months (section 5372 of the Code of 1907) may have afforded the necessary relief in a court of law, from any judgment such as the one here sought to be vacated, yet it is not the exclusive mode of relief, but is concurrent and cumulative with that of equity. Nixon v. Clear Creek...