Leath v. Lister

• Decision Date: 11 March 1937
• Docket Number: 7 Div. 423
• Citation: Leath v. Lister, 233 Ala. 595, 173 So. 59 (Ala. 1937)
• Parties: LEATH, Sheriff, et al. v. LISTER et al.
• Court: Alabama Supreme Court

173 So. 59

233 Ala. 595

LEATH, Sheriff, et al. v. LISTER et al.

7 Div. 423

Supreme Court of Alabama

March 11, 1937

Appeal from Circuit Court, Etowah County; J.H. Bisque, Jr., Judge.

Suit by R.K. Lister against the Mack-Roper Motor Company and R.A Leath, as Sheriff of Etowah County, to set aside a forfeiture judgment on bond, in which respondent Motor Company filed a cross-bill against respondent Sheriff, the Standard Accident Insurance Company of Detroit, Mich., as surety on his official bond, Mark Cunningham and W. Cunningham, principal and surety on replevy bond, praying that, if original complainant be found not to have signed said forthcoming bond and respondents Cunningham be found insolvent, judgment and decree be rendered against respondents sheriff and his surety in cross-complainant's favor for the full amount of its judgment. From a decree discharging original complainant from the litigation and granting relief under the cross-bill respondents Leath and the Standard Accident Insurance Company appeal.

Reversed and rendered.

Motley & Motley and McCord & McCord, all of Gadsden, for appellants.

Culli Culli & Swann, of Gadsden, for appellees.

GARDNER Justice.

The original bill, as amended, seeks relief against a forfeiture judgment on a bond given in the detinue suit of the Mack-Roper Motor Company v. Mark Cunningham, and injunctive relief against the sheriff in making levy thereon. It is rested upon the theory that, though complainant's name appears on the bond (given under section 7389, Code), yet he did not sign the same nor did he authorize any one to sign his name thereto, and hence that his signature thereto was a forgery.

The insistence that the bill is without equity is well taken. If it be considered as one to set aside a judgment in a court of law, there is no averment whatever acquitting complainant of negligence, or any excuse offered for a failure to apply within the 30-day period to the law court for relief. Our cases are to the effect that a want of diligence on complainant's part is as fatal to relief in equity as the want of a valid substantial defense. "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." "A concurrence of injustice committed and freedom from fault and negligence, is an indispensable condition to the exercise of this jurisdiction." Hendley v. Chabert et al., 189 Ala. 258, 65 So. 993, 995.

There is neither averment in the bill nor proof offered on the trial indicating when complainant discovered the fraud alleged to have been perpetrated on him, and of consequence no effort to aver or show by proof any diligence on his part to obtain relief in the court of law.

True, the remedy under our 4-month statute (section 9521, Code 1923) is cumulative merely. Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417; Kelley v. Chavis, 225 Ala. 218, 142 So. 423. But this remedy is to be distinguished from the right to apply to the court of law for relief during the 30-day period (section 6670, Code) when the judgment is yet within control of the court. That distinction is pointed out in Evans v. Wilhite, supra, and, as observed in Kelley v. Chavis, supra, "If defendant has knowledge of the judgment within thirty days, due diligence ordinarily requires that he secure the plenary power of the court by motion made and duly acted upon within that time."

Numerous decisions have treated the question of necessity on complainant's part to acquit himself of negligence in cases of this character, among them, De Soto Coal, Mining & Dev. Co. v. Hill, 188 Ala. 667, 65 So. 988; Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Roebling Sons Co. v. Stevens Electric Co., 93 Ala. 39, 9 So. 369; Barton v. Burton Mfg. Co., 202 Ala. 180, 79 So. 664.

We have offered these observations as the argument of counsel appears to assume that a judgment of a court was here involved, and we have thought it not improper to state our conclusion that even upon such assumption complainant has failed to bring his case within the equitable doctrine of interference with a judgment at law. But this is not a court judgment in the sense of these authorities, and we think the case is governed by other considerations equally fatal to relief.

The bond was given under section 7389, Code 1923, and execution issued for forfeiture under section 7394, Code. But, as observed in Harrison v. Hamner, 99 Ala. 603, 12 So 917, such execution was not issued pursuant to any order of court. "It was a statutory execution, issued by the clerk on the return of the bond forfeited, sometimes called an 'office judgment.' " Such being the character of the execution, a motion to...