Henley v. Chabert

• Decision Date: 11 June 1914
• Docket Number: 838
• Citation: 189 Ala. 258,65 So. 993
• Parties: HENLEY v. CHABERT et al.
• Court: Alabama Supreme Court

65 So. 993

189 Ala. 258

HENLEY v. CHABERT et al.

No. 838

Supreme Court of Alabama

June 11, 1914

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by C.P. Chabert and others against J.M. Henley. From a decree overruling demurrers to the bill, respondent appeals. Reversed, rendered, and remanded.

The bill states the facts to be that the Gas Light, Coal & Coke Company was, on February 20, 1911, engaged in running and operating a coal mine in Walker county; that Chabert &amp Chamborden had general superintendence and supervision as to the method and conduct of said mining operations, and should employ men working in the mine, but that the Gas Light Company reserved the right and authority to discharge persons working in said mine for complainants; that on said date one J.M. Henley was employed by complainants in said mine, and on July 15, 1911, Henley filed suit in the circuit court of Walker county, claiming damages in the sum of $10,000 alleged to have been sustained while he was working in said mine on February 20, 1911, and on February 19, 1912, said Henley filed in the circuit court a complaint against orators individually and the Chabert Coal Company, claiming damages alleged to have been sustained while working in said mine the latter complaint being identical with the former complaint; that the service of the summons and complaint in the last case was had upon orator within two or three days after it was filed, and that said Chabert went to see Henley, and asked him why he had brought the suit, and Henley stated then and there that he had not brought suit against either of these complainants, and had not authorized any one to do so, and it was not his intention or desire to cause either of complainants to pay him anything whatever on account of damages he sustained while working in the mine of the Gas Light Coal & Coke Company, and denied positively that he had sued either of complainants. In order to convince him that he had, complainants showed him the summons and complaint. He thereupon went to see his attorney, Lacy, stating the facts to him, and also told his attorney what Henley had said to him, and that his attorney advised him it would be better to make an appearance in said cause to prevent a judgment by default, and in the meantime he could get a statement from Henley to the effect that he did not want either party sued, and wanted the case against them dismissed. Later he came to Jasper to see his attorney, and went with him to the office of the clerk, where some paper was filed for complainants within less than 30 days from his service, and then went to see Henley to get the statement from him, but Henley said he had had no opportunity to see his lawyers, but that he would do so immediately, and have them dismiss the case, but refused to sign the agreement. A little later he saw his attorney and explained that the attorney informed him that the reason they filed suit against complainants was to prevent the Gas Light Company from setting up a defense to the effect that it was not liable to Henley, but that complainants were, and that complainants might claim that they were, independent contractors and defeat the suit against the Gas Light Company, but that his attorney did not expect to prosecute the suit against complainants unless the Gas Light Company should defeat the suit which Henley had brought against it by showing that complainants were then liable, instead of it, for Henley's injuries. It is alleged that some time thereafter Henley and the Gas Light Company made a compromise and settlement in full for all damages which Henley had sustained by his injuries while working in the mines at the time above mentioned; that the case against these complainants was never set down for trial, and no notice was given complainants or their attorneys until some time in the month of October, when a memoranda was made on the docket setting the case for trial December 16, 1912, but that on October 22, 1912, a judgment by default was rendered by the circuit court of Walker county without notice to orators or their attorneys, and on November 21, 1912, a writ of inquiry was issued, and a judgment rendered against them in the sum of $2,000. It is further alleged that within 30 days of the service of the writ their attorney filed a demurrer to the complaint, but said demurrer is not now among the papers, and cannot now be found. The fifth paragraph set up the defenses defendants had to the plea, which they were deprived of interposing, as they allege, because of the fraud practiced by Henley as above set out, and because of the accident to the clerk's office and loss of pleading. Other facts not necessary to be here set out are averred at some length.

Ray & Cooner, of Jasper, for appellant.

Ernest Lacy and Bankhead & Bankhead, all of Jasper, for appellees.

GARDNER J.

By this bill the appellees (complainants in the court below) seek to enjoin the enforcement of a judgment recovered against them by the respondent in a court of law. The chancellor held the bill sufficient, overruling the demurrer, and hence this appeal.

We leave a recital of the salient features of the bill to be found in the report of the case.

The judgment recovered in the law court was by default, and the theory upon which the complainants seek relief is that such judgment was so recovered as the result of fraud, accident, or surprise unmixed with fault or neglect on the part of complainants.

"The rule allowing parties to appeal to chancery against a judgment in another court is of great strictness and inflexibility, and it is necessary that it should be so, as otherwise the jurisdiction of that court would soon supplant that of all other tribunals." Watts v. Gayle, 20 Ala. 825.

"A proper and due regard for the peace and interests of society requires strictness and caution in exercising the power to disturb the decrees and judgments of other courts of competent or concurrent jurisdiction, and reopening controversies, which it is the policy of the law to quiet. *** To successfully invoke the interposition, it is not sufficient that wrong has been done, but it must be manifest that the wrong occurred because of accident, surprise, fraud, or the act of the opposite party, and without fault or neglect on the part of the party complaining. A concurrence of injustice committed and freedom from fault and negligence, is an indispensable condition to the exercise of this jurisdiction." Waldrom v. Waldrom, 76 Ala. 289.

Again in Foshee v. McCreary, 123 Ala. 493, 26 So. 309, it is said:

"The rules of equity are strict in requiring a party seeking relief from a judgment at law to acquit himself of fault or neglect in respect of defenses which might have been interposed to prevent the judgment."

See, also, Ex parte Walker, 54 Ala. 577.

It is therefore well settled that whatever may be the fraud, or accident, or surprise alleged, unless the complainant is able to show that he himself was without fault or neglect, then he must be denied relief.

Many of the authorities use the language, "due diligence must be shown," while in Norman v. Burns, 67 Ala. 248, it is said that:

"The highest degree of diligence is exacted from him, and if it is not exhibited, the court will not intervene. *** A want of diligence is as fatal as the want of a valid substantial defense, or the absence of any fact rendering it unconscientious to execute the judgment."

We may, in the instant case, however, only place emphasis upon the expression "due diligence," and we are of the opinion complainant has failed to meet even this requirement, and that the bill is fatally defective.

In the first place it is well understood that an exercise of due diligence requires that application be made to the law court for relief during the term at which the judgment was rendered, or, if not, that the bill disclose a valid reason for the omission. It was so held as far back as the case of French v. Garner, 7 Port. 549, alluded to in Ex parte Wallace, 60 Ala. 267, as a leading case, wherein the opinion says:

"He [complainant] does not show that he could not have applied for a new trial to the court which tried the cause, nor show any excuse for his not doing so."

So, also, in the more recent case of National Fertilizer Co. v. Hinson, 103 Ala. 532, 15 So. 844, where it is said:

"Again, the bill is fatally defective in failing to show why application was not made to the court, before adjournment, to set aside the judgment."

This is fully recognized as the rule in Evans v. Wilhite, 167 Ala. 591, 52 So. 845. See also, Blood v. Beadle, 65 Ala. 103.

There is no averment whatever in this bill that application was made to the law court to set aside the judgment, before adjournment of said court, nor is there any effort made to excuse a failure to do so. Under numerous authorities of this court, this is a fatal defect in the bill. We emphasize the words "before adjournment" as it is well settled that the statutory provision for rehearing (section 5372, Code) does not oust the chancery jurisdiction in such cases as therein provided. Evans v. Wilhite, supra.

From brief of counsel for appellee, however, it seems to be the insistence that the bill shows a discovery of the judgment by complainants too late for such application to be made, as 30 days had expired after judgment by default was rendered before they learned of the same, and that therefore, under the practice act which governs Walker county (Acts 1907, page 494), the judgment had passed beyond control of the court.

It is to be noted that the suit in that court was for recovery of unliquidated damages, and that the judgment by default was rendered October 22, 1912. The writ of inquiry was executed and final judgment...