McWilliams v. Martin, 6 Div. 496.
| Decision Date | 04 May 1939 |
| Docket Number | 6 Div. 496. |
| Parties | MCWILLIAMS v. MARTIN. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.
Bill in equity by Jennie K. McWilliams against F. A. Martin to set aside and cancel a judgment at law. From a decree sustaining a demurrer to the bill, complainant appeals.
Affirmed.
Robert Giles, of Birmingham, for appellant.
Edgar Allen, of Birmingham, for appellee.
Bill in equity to set aside and cancel a judgment at law, valid on its face, because the complainant has a meritorious defense to same which she failed to present because of fraud accident or mistake. It is essential to the equity of such a bill that the averments of same should show diligence on the complainant's part and negative negligence as to the failure to present her defense in the law court.
It may be conceded that the bill sets up a good defense to the action at law, but it, in effect, shows that the failure to present same was due to the neglect or failure of her employed attorney who failed to keep her informed of the condition of the case and trial and the result of same. An attorney being an agent duly authorized, his acts are those of his client. The client is therefore bound by all the acts of his attorney in the course of legal proceedings in the absence of fraud or collusion, and he can not plead the negligence of his attorney as a ground for relief. Albert Hass Lumber Co. v. Gibson, 172 Ala. 111, 54 So. 994, Ann.Cas.1913D, 497.
Moreover we think the bill of complaint presents a plain case of laches. Bills of this character have had applied to them, by way of analogy, the statute of limitations under Section 6608 of the Code of 1923. Manegold et al. v. Beavan, 189 Ala. 241, 66 So. 448. The complainant, however, is not precluded by this statute if she has a good excuse for the delay. Here, she claims as an excuse a want of knowledge of the judgment until the levy on her land nearly nine years after the rendition of same. Her attorney must have known of same, but, apart from this, she was guilty of great indifference and gross negligence in not finding out the result of a suit against her in which she had been served with notice and had employed counsel to defend same. The excuse offered in the present bill is no better than, if as good as, the one held insufficient in the well considered case of Barrow v. Lindsey, 230 Ala. 45, 159 So. 232.
The trial court did not err in sustaining the...
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