Palliser v. Home Telephone Co.

• Decision Date: 19 January 1911
• Citation: 170 Ala. 341,54 So. 499
• Parties: PALLISER v. HOME TELEPHONE CO.
• Court: Alabama Supreme Court

54 So. 499

170 Ala. 341

PALLISER v. HOME TELEPHONE CO.

Supreme Court of Alabama

January 19, 1911

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Action by Melazie M. Palliser against the Home Telephone Company. From a decree dismissing the bill, plaintiff appeals. Reversed and remanded.

Hamilton & Thornton, for appellant.

Pillans Hanaw & Pillans, for appellee.

SAYRE J.

The original bill in this cause was filed December 30, 1905, by appellant as a stockholder in the defendant corporation, and sought to set aside as fraudulent certain issues of stocks and bonds. After an appeal to this court from rulings on demurrer (Palliser v. Home Telephone Co., 152 Ala 440, 44 So. 575), the bill received its final shape by an amendment which was allowed on January 13, 1908. Thereafter interrogatories were propounded to the defendant under the statute authorizing the examination of adverse parties, and these were answered on May 31, 1909. November 11, 1909, the parties entered into a stipulation which provided for the taking of testimony of witnesses on one day's informal notice. It was also agreed that defendant's answer to the interrogatories could be used by either party as a deposition, subject to addition by further examination as either party might desire, reserving to the complainant the right to file within 40 days further interrogatories to the defendant which were to be answered within 30 days, and, the court being then in session, it was agreed that the cause should be submitted for decree in vacation, upon the testimony so taken, 70 days from the date of the stipulation unless a further extension should be agreed upon in writing or unless the chancellor "on motion as to fullness of answers or other question of evidence" should extend the time. Nothing being done in the meantime, counsel for defendant on January 24, 1910, prepared a note of the defendant's testimony, and handed it, along with all other papers upon file, to the chancellor as a submission of the cause for final decree upon pleadings and proof. On February 2, 1910, complainant filed her sworn petition praying that the alleged submission be set aside and that she have further reasonable time within which to take additional testimony. Reason why testimony had not been taken within the time stipulated was thus stated in the third paragraph of complainant's petition: "She shows that she has been prevented, by illness and death in the immediate family connection of her solicitor, P.J. Hamilton, before and at the time contemplated in the agreement, from taking further testimony material in the cause." Upon hearing this motion at the next regular term the chancellor set aside the submission for the reason, as we read his decree, that the agreement contemplated that the parties should have 70 days in which to take testimony, but not that the cause should be submitted on the seventieth day, and that complainant had not had an opportunity to join in the preparation of the note of submission. He refused, however, to extend the time for taking testimony and required the complainant forthwith to join in a submission of the cause. Setting down his reasons for this last-mentioned provision of the decree, the chancellor stated that: "Agreements made voluntarily and without any element of fraud or deceit between attorneys must be given effect by the court and cannot be set aside unless for some reason of this kind. * * * The time to take testimony solemnly stipulated between the parties has closed, and the court, admitting every reason shown,...