National Fertilizer Co. v. Hinson

• Decision Date: 12 June 1894
• Citation: 15 So. 844,103 Ala. 532
• Parties: NATIONAL FERTILIZER CO. v. HINSON ET AL.
• Court: Alabama Supreme Court

15 So. 844

103 Ala. 532

NATIONAL FERTILIZER CO. v. HINSON ET AL.

Supreme Court of Alabama

June 12, 1894

Appeal from chancery court, Geneva county; Jere N. Williams Chancellor.

Bill by Joseph Hinson and another against the National Fertilizer Company to vacate a judgment, and to enjoin issuing an execution thereon. A motion to dissolve the injunction was overruled, and defendant appeals. Reversed.

Most of the allegations of the bill are sufficiently stated in the opinion. The alleged adequate defenses, which are referred to in the opinion, are thus averred in the bill: "There was a failure of consideration in said note, in that the company did not ship them the quantity of the fertilizers they gave their note for. Second. That said fertilizers were shipped in sacks, and there was no tag or tags attached to each sack, as required by law. Third. The fertilizers were not delivered as per agreement, and complainant had to buy elsewhere. Fourth. That complainant had paid quite a large sum of money, to wit net about two hundred and fifty dollars, to the attorney of said National Fertilizer Company, which he has failed to credit on said judgment. Fifth. That an execution is now in the hands of B. F. Pate, sheriff of Geneva county, Alabama and he has levied said execution upon the property of complainants, and is proceeding to sell the same."

M. E Milligan, for appellant.

J. J. Morris, for appellees.

HEAD J.

On January 16, 1892, at a special term of the circuit court of Geneva county, appellant recovered a judgment by default against appellees for the sum of $956.39, on a promissory note given for the price of fertilizers purchased. The summons and complaint were sued out in July, 1891. This bill was filed April 7, 1893, to vacate that judgment, and for injunction against the enforcement of execution, in the hands of the sheriff, issued thereon. The alleged equity of the bill is that complainants had meritorious defenses to the action, which they were prevented from making by the fraud of the plaintiff's attorney, unmixed, with negligence on their part. The first and third of these defenses, as they are specified in the bill, if true, were good, and stated with sufficient particularity; the first, however, appearing to be only a partial defense to the action. The second, which would seek to invalidate the contract, as a penalty, under the law, for the failure of the plaintiff to tag the sacks of fertilizer, will not be noticed by a court of equity in a bill of this kind. The fourth would be sufficient as the basis of a decree granting a credit on the judgment for the amount paid on the note, the other essentials of the equity of the bill being established. It would not justify setting aside the judgment. The defense which must be relied on therefore, as justifying the application for, and grant of, an injunction restraining the collection of the entire judgment, is the third, which sets up an entire failure of the consideration of the note; which defense comprehends, also, the partial failure of consideration set up in the first. The facts alleged as showing fraud on the part of plaintiff's attorney, and the want of fault or neglect on the part of complainants, are that on Thursday of the term, when no judgment had been rendered in the case in question, the presiding judge announced publicly "that the civil docket of said court would not again be taken up, and that all parties interested could go home;" and that complainants went home with the understanding that their cases would not be called for trial; and that, as they have been informed, the judgment was taken against them on Saturday morning, upon the statement to the court, by the attorney for the National Fertilizer Company, "that it was by agreement that the judgment be taken," and, upon this statement, the court entered the judgment by default, although the civil docket had been continued for the term. The bill alleges that no such agreement had been made, but, on the contrary, that complainants had a good defense to the action, and that they remained in court all the week to offer said defense when the case should be called, until they went home upon the said announcement made by the judge. When the announcement of the judge was made, the time for defendants to appear and plead had passed, and, as the court rendered judgment by default, it must be taken, in the absence of averment to the contrary, that they had done neither. They were, therefore, in default, and not entitled to notice of any proceedings which the court might thereafter take in the cause. If, after such default, the court had entered, in that particular cause, a special order of continuance, and complainants had acted upon it and gone home, yet the court could, thereafter during the term, have set aside the continuance, and granted judgment by default, without infringing any legal right whatever of the complainants. If they had been present when judgment was moved for, they could have defended, upon the special plea of failure of consideration, only by the grace of the court. Application by them for leave to defend, upon such a special plea,...