Evans v. Wilhite

• Decision Date: 08 February 1912
• Citation: 176 Ala. 287,58 So. 262
• Parties: EVANS v. WILHITE.
• Court: Alabama Supreme Court

58 So. 262

176 Ala. 287

EVANS v. WILHITE.

Supreme Court of Alabama

February 8, 1912

Rehearing Denied April 25, 1912.

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

Bill by Charles M. Evans against J. D. Wilhite to set aside a judgment in an action at law. Bill dismissed, and complainant appeals. Reversed, and decree entered, perpetually enjoining the execution of the judgment.

J. B Brown, of Cullman, for appellant.

F. E St. John, of Cullman, for appellee.

MAYFIELD J.

This is a bill in equity to set aside a judgment in a court of law, because obtained by surprise, accident, mistake, or fraud. The equity of the bill was tested and settled on a former appeal, reported in 167 Ala. 587, 52 So. 845. As was held before in this case, and in Renfro Bros. v. Merryman, 71 Ala. 195, this and the statutory remedy provided in section 5372 of the Code are cumulative. The case was subsequently tried on the bill, answer, and proof, and the bill dismissed, and from such decree of dismissal the complainant prosecutes this appeal.

After a careful examination of the pleadings and the proof in this case, we are led to the inevitable conclusion that the complainant was entitled to the relief prayed, and that the chancellor erred in dismissing his bill.

The following facts are indisputably shown by the pleadings and proof, and upon these facts the complainant was entitled to the relief sought:

The complainant lived in Morgan county, and the respondent in Cullman county. Complainant owned a certain mule, which he sold to one Rutherford on credit, taking a mortgage to secure the purchase price, which mortgage was promptly and properly recorded, as required by the statutes. Rutherford traded this mule to respondent, and respondent instituted a prosecution against Rutherford for thus trading mortgaged property, and Rutherford left the state. Complainant personally informed respondent of the fact that he had a mortgage on the mule, but consented for respondent to keep the mule until he had finished making his crop, under the promise from respondent that he would then return the mule to complainant, which promise respondent made good by delivering the mule to complainant at the latter's home in Morgan county. Subsequently respondent heard, through third parties, that complainant had consented for Rutherford to trade the mule, and he thereupon instituted a suit of trover, in Cullman county, against complainant, who lived in Morgan county, as for a conversion of the mule.

The respondent here (plaintiff in the action at law) was represented, in bringing the suit, by an attorney who resided at Cullman; and the complainant here (defendant in the action of trover) was represented by his attorney, who lived in Morgan county.

The defendant in the action of trover, by his attorney, filed a plea in abatement, setting up the fact that he resided in Morgan county, and not in Cullman county. This plea was filed within the time required, and was the only plea filed.

There were communications between the attorneys as to when the case would be set for trial; and on the day it was so set defendant's attorney, in Morgan county, called plaintiff's attorney, over the long-distance phone, for the purpose of arranging for the continuance of the case. The evidence is in conflict as to the exact nature of the agreement as to the continuance.

Defendant's attorney on the same day called up, over the phone, another firm of attorneys in Cullman, and requested them to represent him (the attorney) relative to obtaining the continuance. This firm of attorneys, two of them, conferred with plaintiff's attorney on the morning of the day on which the case was set for trial; but the evidence is in conflict as to exactly what agreement was made; but it is undisputed that the case was regularly called for trial on the morning of that day, and was continued by a separate and regular order shown by the circuit court record. The defendant's evidence shows that the continuance was in pursuance of the various agreements; while the plaintiff's tends to show that it was because the plaintiff or his witnesses were not present, and his attorneys could not prove his case.

It is undisputed that none of the plaintiff's witnesses were present in court, or in attendance, on the day the case was set for trial, and that the plaintiff himself was the only witness examined. It is likewise not controverted that plaintiff himself was not present when the case was called for trial, and when it was continued by the court; but it is shown that he was present, and that neither the defendant nor his attorney was present, when the case was subsequently called up and the continuance set aside and a judgment taken for the plaintiff, and that neither was notified of the purpose to set aside the continuance and take a judgment. It does appear, however, that the name of the attorney was called by the sheriff, but that no one answered or appeared; it being known to the plaintiff and his attorney that the defendant resided in Morgan county.

The plaintiff himself testified as follows: "I never saw the mule, after I turned it over to Mr. Evans, that I remember. The place where I delivered the mule to Mr. Evans was in Morgan county. Mr Evans didn't require me to pay for the work of the mule for the year 1907. After Harris Cook told me what he did, and after I saw the witnesses, I went to see Mr. Evans about it. I saw Mr. Evans in front of his house, in his horse lot. Mr. Rutherford was gone at that time, or was reported gone. I told Mr. Evans on this occasion that I understood that he had liberated Rutherford to trade the mule. He said it wasn't true. I didn't tell him who had informed me, and he didn't ask me. That was three months or so after I had delivered the mule to him. I told him I had been to see these witnesses, and they told me that they heard him say so. I never told him who the witnesses were. At the time I filed this suit against Mr. Evans, he was living in Morgan county. He had a permanent residence in that county."

Plaintiff's attorney testified in part as follows: "My recollection is that this case was set regularly for trial. I don't remember, but my recollection is that the judgment was taken either on Friday or Saturday of the last week of the court. [ The record shows it was Saturday.] I believe the judgment was taken at the afternoon session of the court. I haven't any independent recollection as to when the case was called but it was called when I was unable to make out a case, and an order of continuance was entered. I presume the case was called for trial when the continuance was entered. It was continued because I was unable to make out a case, and I stated this to the court, and also that Mr. Wilhite might come in, and if he did I wanted to make motion to have the order of continuance set aside and make the proof. I am unable to say whether Hutson or Kilpatrick were in court when the order of continuance was taken. [ The record shows they were.] There was a plea in abatement on file in the case. I don't remember how the court treated the plea. * * * I don't remember seeing Evans or Brindley in court when judgment was taken. Brindley called me about the case, and I was going to continue the case for him, until he told me Hutson and Kilpatrick were going to represent him. Brindley said he couldn't be in court. My recollection of the conversation with Brindley is that I told him the case would not likely be reached until the latter part of the week, if at all. Then is when he told me that he had employed Hutson and Kilpatrick to represent him; that if the case would be reached he couldn't be there. I don't remember the exact words he used, whether he said he had employed them, or whether he had asked them to look after it for him. I wouldn't be positive; but I am inclined to think it was Hutson that came to see me about the case. We discussed the question of continuing the case. We talked about not being able to reach the case. The one...