Norwood v. Louisville & N. R. Co.

• Decision Date: 24 November 1906
• Citation: 42 So. 683,149 Ala. 151
• Parties: NORWOOD v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

42 So. 683

149 Ala. 151

NORWOOD v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

November 24, 1906

Rehearing Denied Dec. 21, 1906.

Appeal from Chancery Court, Limestone County; W. H. Simpson Chancellor.

"To be officially reported."

Suit by the Louisville & Nashville Railroad Company against Willie Emma Norwood. From a decree in favor of complainant defendant appeals. Reversed and rendered, dismissing the bill and dissolving an injunction.

Erle Pettus, for appellant.

Harris & Eyster, H. C. Thach, and W. R. Walker, for appellee.

SIMPSON J.

This case is a bill in chancery to enjoin proceedings under a judgment at law, and to grant a new trial of the case. The facts, in short, are that the appellant, as plaintiff in the suit at law, recovered a judgment against the appellee in the circuit court of Limestone county on January 20, 1904; the said court being presided over by Hon. Paul Speake, who became judge under the act known as the "Lusk Bill," which has been declared unconstitutional, but whose acts as a de facto judge have been held to be valid when the court was held at a time authorized by the previous law. Said 20th of January, 1904, was within the proper time under said previous law, and the judgment was consequently valid. Under said previous law said term came to an end on January 23, 1904. On January 28, 1904, the defendant (appellee here) placed on the docket a motion for a new trial, and on January 30th (which would have been the last day of the term under the Lusk bill) this motion was continued, on application by the plaintiff (appellant here) and on the 14th of April, 1904, within the time for the legal term of said court, the parties being present by their attorneys, and the said motion duly considered by the court the same was granted. Appellee claims that this court stood adjourned, by operation of section 922 of the Code of 1896, on the 13th. Although the 14th of April, 1904, the day on which the motion for a new trial was granted by the de facto judge, was within the time prescribed by law for the holding of said court, yet said law required said court to meet on the 4th of April, and as a matter of fact the court did not meet until the 11th of April, the day fixed by the Lusk act for meeting. That being the case, section 922 of the Code of 1896 provides that, "when a circuit judge fails to attend, the court stands adjourned from day to day until 3 o'clock in the afternoon of the third day, when it is adjourned to the next succeeding term."

It is a familiar principle of law that, during the interim between the periods when courts are allowed to sit, said courts have no judicial power, and any acts of a judicial nature, except such as may be specially authorized by statute, done in vacation, are absolutely void. Garlick v. Dunn, 42 Ala. 409. Under a previous statute, which made it the duty of the sheriff, at 3 o'clock on the third day, the judge not having appeared, "to adjourn all suits," etc., to the next term, and of the clerk to enter a continuance in all suits, etc., proceedings were had, after the adjournment, in accordance with the statute, and our court held that the decree rendered "was made at a time when, from the adjournment of the court, there was no authority for the chancellor to act, and that it is therefore void"; that the act was not judicial, and could not be validated by estoppel or waiver. Cullum v. Casey & Co., 1 Ala. 351, 355. Our present statute does not require any act of the sheriff or clerk to adjourn the court; but the court stands adjourned by operation of law, whenever the time prescribed is reached, without the appearance of the judge. Consequently, at the time the motion for a new trial was granted, there was no authority of law for holding said court, and said action was void.

So the question arises as to the equity of the bill: Counsel for appellee has made an able and exhaustive argument on the right of the court of chancery to use its injunctive power for the purpose of forcing the appellant to submit to a new trial in this case. It is undoubtedly true that, from the early history of the courts of chancery in England, it was acknowledged that under certain circumstances it could virtually grant new trials at law, by operating on the party to the suit, and not on the law courts, requiring the party to submit to a new trial at law or be enjoined from enforcing his judgment. Mr. Pomeroy says that, when a judgment had been "obtained by fraud, mistake, or accident," the injunction could be granted, "and the injunction * * * was a mere incident to the broader relief, which set aside the judgment and granted a rehearing of the controversy in the court of chancery." And he goes on to say that "the original occasion for this special jurisdiction has disappeared, as in England and most of the American states, either through statutes or through judicial action, the courts of law have acquired and constantly exercise full powers to grant new trials, whenever, from the wrongful acts or omissions of the successful party, or from accident or the mistake of the other party, or from error or misconduct of the judge or the jury, there has been a failure of justice." His general conclusion is that "a court of equity, in general, no longer assumes control over a legal judgment, for the purpose of a new trial or any similar relief." 3 Pomeroy's Eq. Jur. § 1365. Chancellor Kent also says that "anciently courts of equity exercised a familiar jurisdiction over trials at law, and compelled the successful party to submit to a new trial or to be perpetually enjoined from proceeding on his verdict. This relief was not granted, unless the application was founded upon some clear case of fraud, or injustice, or upon newly discovered evidence, which could not possibly have been made use of upon the first trial. But this practice has long since gone out of use, and such jurisdiction is rarely exercised in modern times, because courts of law are now in the competent and liberal exercise of the power of granting new trials." The learned chancellor goes on to state that it is proper for a chancery court to exercise the power in question in a "case in which the court of law has no power to award a new trial upon the merits." Floyd v. Jayne, 6 Johns. Ch. (N. Y.) 479, 482. According to Judge Story, a court of equity is authorized to interfere by injunction with judgments of a court of law only on proof of facts which show it to be against conscience to execute such judgment, of which the injured party could not have availed himself, or was prevented therefrom by fraud or accident unmixed with negligence, and he states that such bills are usually called bills for a new trial; but, as remarked by Lord Redesdale, "bills of this description have not of late years been much countenanced." 2 Story's Eq. Jur. (10th Ed.) §§ 883b, 886. Again he says: "Although some of the earlier decisions look almost like granting new trials in equity, * * * the recent and better considered cases will justify no such proposition. The new trial is never granted in terms. There can be, in no such case, anything like another trial in the court of law. The case is effectually ended there." But he goes on to state that "where there was a distinct and decided fraud in the proceedings by which the judgment at law was obtained," also where the defendant, through accident or mistake, without fault, etc., fails to present his defense, the court will examine the case upon its merits, and may enjoin the party from pursuing his judgment, or a part of it, or may fix some conditions. 2 Story's Eq. Jur. (10th Ed.) § 1574, and note.

These and other authorities are clear to the point that in taking such action the equity court does not presume to act on the law court itself, but only on the party; and, that being the case, it seems to be a serious question how the equity court could make its decree effective. As stated by Judge Story, "the case is effectually ended" in the law court. Said court has no power to reopen the case at a subsequent term; and how, then, can an injunction against the party confer upon the law court the power to do that which it had no power to do before, to wit, to reopen a case, which had been finally disposed of at a previous term, and retry it? If, as some of the cases intimate, the chancery court should take to itself the trial of the case, although it might submit the issues of fact to a jury, yet under our statutes this is not a matter of right, but one which addresses itself to the unrevisable discretion of the chancellor. No question of law can be reserved by bill of exceptions, the action of the jury is merely for the information of the chancellor, and not conclusive on his conscience or judgment, and in many respects, the trial is so unlike the jury trial at law that it would seem a court of chancery should, at least, demand strict conformity to the requirements of the law before interfering with the judgment of the law court. Mathews v. Forniss, 91 Ala. 157, 163, 8 South 661; Marshall v. Croom, 60 Ala. 121, 125; Anonymous, 35 Ala. 226, 229; Alexander v. Alexander, 5 Ala. 517, 518; Adams v. Munter, 74 Ala. 338, 341. However that may be, it is clear that the appellee (complainant in the bill) has not brought itself within the terms even of the ancient authorities recognized by these venerable jurists.

But it must be acknowledged that this ancient doctrine has been revived in...