Raisin Fertilizer Co. v. McKenna

• Citation: 21 So. 816,114 Ala. 274
• Parties: RAISIN FERTILIZER CO. v. MCKEENA.
• Decision Date: 01 April 1897
• Court: Supreme Court of Alabama

21 So. 816

114 Ala. 274

RAISIN FERTILIZER CO. v. MCKEENA.

Supreme Court of Alabama

April, 1897

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

Suit by A. T. McKenna against the Raisin Fertilizer Company. Decree for complainant. Defendant appeals. Affirmed.

The bill in this case was filed on August 17, 1895, and prayed to have the defendant enjoined from a sale of the complainant's property, which was levied upon under an execution issued upon a judgment obtained by the defendant against the complainant. The bill averred in detail facts showing the recovery of a judgment against him upon a note made by him to one Harper, which note the complainant had paid. The averments of the bill, and the other facts of the case, are sufficiently stated in the opinion.

The defendant demurred to the bill upon the following grounds (1) That it fails to show that the plaintiff had a full and complete defense to the note upon which judgment was rendered, and that the same could be proven by him upon a trial of said cause at law. (2) That the complainant was guilty of laches, having known that there was a judgment rendered against him in 1892, in not filing the bill at an earlier date. The defendant also moved to dismiss the bill for the want of equity. The chancellor overruled both the motion and the demurrer.

Upon the final submission of the cause, on the pleadings and proof, there was judgment rendered granting the relief prayed for, and making perpetual the temporary injunction, which had been issued upon the filing of the bill. The defendant assigns as error the decree overruling the motion to dismiss the bill for the want of equity, and overruling the demurrers to the bill, and the rendition of the final decree.

M. E Milligan, for appellant.

J. J Morris, for appellee.

HARALSON J.

The bill avers, that "no summons and complaint were ever served on him (the complainant and appellee), notifying him that any suit was pending against him, so that he could appear and defend against it. Although the sheriff's return on the back of the summons and complaint shows it was executed, yet in fact it was not."

So far as the bill is dependent on the averment of a lack of service or notice before judgment rendered against complainant, and the lack of opportunity to correct it at the term of the court at which it was rendered, its allegations are full and sufficient.

Such a bill must aver, however, both a want of service, and a good defense. Dunklin v. Wilson, 64 Ala. 162; Rice v. Tobias, 83 Ala. 348, 3 So. 670.

As to the statement of facts showing a good defense, the bill avers in substance, that the note in suit was given to J. B Harper, a merchant doing business at the time in Geneva, Ala., to procure an advance of supplies to complainant during the year, and to secure its payment, he gave Harper a mortgage on personal property; that complainant procured advances on the note and mortgage during the year, but in the fall he paid Harper for them; that he did not take up the papers, because Harper said they...