Ezzell v. First Nat. Bank

• Citation: 135 So. 582,223 Ala. 353
• Decision Date: 27 June 1931
• Docket Number: 8 Div. 290.
• Parties: EZZELL ET AL. v. FIRST NAT. BANK OF RUSSELLVILLE.
• Court: Alabama Supreme Court

135 So. 582

223 Ala. 353

EZZELL ET AL. v. FIRST NAT. BANK OF RUSSELLVILLE.

8 Div. 290.

Supreme Court of Alabama

June 27, 1931

Appeal from Circuit Court, Franklin County; J. Fred Johnson, Jr. Judge.

Bill in equity by Eva Ezzell and another against the First National Bank of Russellville. From a decree overruling a motion to set aside a decree dismissing the bill, complainants appeal.

Appeal dismissed.

Wm. L Chenault, of Russellville, for appellants.

J. Foy Guin, of Russellville, for appellee.

BOULDIN J.

Rehearing under the four months' statute, Code, § 9521, is confined to courts of law.

The aim of the statute is to give a speedy remedy at law similar to that already existing and still available by bill in equity to annul and vacate judgments at law procured by fraud accident, or mistake without fault on the part of complainant, and upon a showing that he had a good cause of action or defense.

The same relief against decrees in equity is obtained by original bill in the nature of a bill of review. 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.

Appellant filed a bill in equity to enjoin a sale of lands under mortgage, and for accounting and redemption. See Ezzell v. First National Bank, 218 Ala. 462, 119 So. 2.

After the cause was at issue, and after the trial court had by order prescribed the time within which proof must be taken, and no proof having been taken as per order, the court at the instance of respondent took the cause under submission and dismissed the bill for want of proof.

More than thirty days after this decree, but within four months, motion was made to set aside the decree dismissing the cause, and to reopen the cause for taking proof.

Certain matters were alleged as an excuse for failure to take proof, but no allegation was made showing a meritorious case.

This motion was denied and stricken on motion of respondent.

Without dealing with other questions, appellants in brief treat the motion as an application for rehearing under the four months' statute. As such it presented no case within the jurisdiction of the equity court. The action of the court thereon is not appealable.

The trial court was not called upon to treat the motion as an original bill in the nature of a bill of...