Oden v. King

• Decision Date: 30 June 1927
• Docket Number: 6 Div. 913
• Citation: 216 Ala. 597,114 So. 1
• Parties: ODEN v. KING et al.
• Court: Alabama Supreme Court

114 So. 1

216 Ala. 597

ODEN v. KING et al.

6 Div. 913

Supreme Court of Alabama

June 30, 1927

Rehearing Denied Oct. 20, 1927

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by D.A. Oden against S.P. King and another, to enjoin execution of and to cancel a judgment, and to recover money collected as usury under foreclosed mortgages. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

Hugh A Locke and Earl McBee, both of Birmingham, for appellant.

William S. Pritchard and John D. Higgins, both of Birmingham, for appellees.

THOMAS J.

The appeal was taken under the 6 months' statute from final decree (sustaining demurrers and dismissing the bill), under section 6078 of the Code, and not under section 6079 providing for appeals from certain interlocutory decrees.

We have considered, in another case between these parties and others the effect of assigning demurrers to the whole bill containing several aspects. Oden v. King et al. (Ala.Sup.) 113 So. 609; Thompson v. Brown, 200 Ala. 382, 76 So. 298; Hudson v. Hudson, 204 Ala. 75 85 So. 282; Bank v. Dunnavant, 204 Ala. 656, 87 So. 105; City of Birmingham v. L. & N.R. Co. (Ala.Sup.) 112 So. 742. This case is within that rule, and the sustaining of demurrer to the bill as a whole and dismissing the same will be tested by the question of equity vel non as to any aspect presented. The demurrer was sustained generally; no mention was made to partial demurrers. Sandlin v. Anders, 210 Ala. 396, 98 So. 299.

The rules of chancery pleading were recently discussed in Heflin v. Heflin, 208 Ala. 69, 93 So. 719, and American Book Co. v. State of Alabama (Ala.Sup.) 113 So. 592, and it is unnecessary to be repeated.

It is insisted that the aspect of the bill and prayer for injunction and cancellation as affecting the recorded judgment contained equity--that the notes sued on were without consideration, and that King was not a bona fide purchaser for value without notice. The date of rendition of the judgment is not stated in the original bill or as last amended. The burden to state all the material facts was upon the pleader.

In a proper case and where circumstances of a failure to defend in the law court, sufficient to excuse complainant for such failure, it may avail him in equity. The case cited by appellant (Paulding v. Watson, 21 Ala. 279) a judgment by default founded on a gambling consideration, was not limited by the analogy of a bill of review, and may be enjoined in the enforcement after the lapse of seven years from rendition, though no excuse was given for failure to defend at law. This was by virtue of the statute (Clay's Dig. p. 350), conferring upon courts of equity jurisdiction in all cases of gambling consideration for discovery and to enjoin judgments at law. The rule long prevailing is that to entitle relief in equity against a judgment at law the failure to make a defense be not attributable to complainant's omission, neglect, or default, and that there is a good defense to the entire cause of action, or to such part thereof sought to be litigated by the bill. Hair v. Lowe, 19 Ala. 224; Zavelo v. Goldstein, 178 Ala. 321, 325, 59 So. 618. In the case of Hauser v. Foley & Co., 190 Ala. 437, 67 So. 252, the lack of service of process and knowledge of the pending suit was averred, no injury shown to the other party from delay, and not shown that the delay was inexcessible.

According to the allegations, the complainant was largely indebted to respondent King by mortgage, some of which was part due and unpaid and subject to foreclosure, that complainant had been requested by said respondent King to renew and extend the indebtedness or evidences thereof embracing usurious charges of interest at a time when he was unable to pay. It is further averred that said King knew the fact of want of consideration, was not a bona fide purchaser for value without notice; that:

"At the time the said Sibley P. King took said

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