Ex parte Gresham

• Decision Date: 09 May 1887
• Citation: 82 Ala. 359,2 So. 486
• Parties: EX PARTE GRESHAM.
• Court: Alabama Supreme Court

2 So. 486

82 Ala. 359

EX PARTE GRESHAM.

Supreme Court of Alabama

May 9, 1887

Appeal from Montgomery chancery court.

Application by S. Gresham, by petition, for a writ of mandamus from this court to the chancery court at Montgomery, Hon. J A. FOSTER presiding requiring him to set aside and vacate an order or decree rendered in a cause pending in said court wherein Mrs. A. A. Ware was the complainant, and said Gresham and others were defendants, which decretal order granted a rehearing of a decree rendered in said cause by consent in vacation. The bill was filed by Mrs. Ware in February, 1882 and sought, principally, to redeem a house and lot in the city of Montgomery, which she had mortgaged to said Gresham the mortgage also conveying a tract of land in Elmore county which belonged to Robert Y. Ware, who executed the mortgage jointly with Mrs. Ware, she being only his surety for the debt; and the bill sought to have the tract of land first appropriated to the payment of the mortgage debt, offering to pay the balance due, if any, after an account of the rents and profits. On appeal to this court, at the last term, the decree of the chancellor was partly affirmed and partly reversed. Gresham v. Ware, 79 Ala. 192.

Syllabus by the Court.

When a decree is rendered in Alabama in vacation, an application for a rehearing may be made by the second day of the next ensuing term, and, when so made, is govened by the same rules that apply to other applications for a rehearing, (Rules Chancery Practice, Nos. 80, 82; Code, 173;) and, while it is provided that the petition "must be confined to the case made by the record," this provision does not exclude the presentation and consideration of extrinsic facts, when relevant and pertinent to the case made by the record, and duly verified by affidavit.

Generally a rehearing will not be granted when the decree was rendered by the consent of the parties, or of their solicitors duly authorized; but one of the exceptions to this general rule is that a rehearing may be granted for reasons sufficient to authorize the setting aside of the consent or agreement under which the decree was rendered.

Rehearings in equity are matters of discretion; and the exercise of this discretion is not revisable, either on appeal or by mandamus.

At the next ensuing term after the remandment of the cause, on April 22, 1886, an order was entered in the cause in these words "It is agreed between the parties that this cause be submitted for final decree in vacation, within ten days after the register's report is filed, on the report and exceptions, if any, and for final decree." The register adjourned the reference from day to day, on account of a pending proposition of compromise, until June 9, 1886, when he proceeded to state an account, and ascertained and reported that the balance due S. Gresham, after deducting all credits, was $16,889.19. Immediately after this report, as copied in the transcript, but without date, is an agreement in writing, signed by the counsel of all the parties, in these words: "We, the solicitors of the parties to the above-stated cause, have examined the foregoing report of the register, and find the same free from objections; and we hereby waive any right we may have to except thereto, and consent that the same may be immediately and in all things confirmed by the chancellor, and that a final decree be rendered in said cause in compliance therewith." This being the state of the case, the chancellor rendered a decree, which is dated June 11, 1886, but marked by the register, "Filed in office, June 16, 1886," by which, after stating the consent and agreement, he ascertained and decreed the balance due was as stated above; ordered a sale of the plantation in Elmore county, called the "Molton Place," unless this amount was paid by the complainant within 30 days, and the proceeds to be applied to the satisfaction of said Gresham's mortgage debt; and further directed the register, if said mortgage debt was not paid in full by the proceeds of said sale, to advertise and sell Mrs. Ware's residence in the city of Montgomery, in...