Rice v. Tobias

• Decision Date: 05 May 1890
• Citation: 89 Ala. 214,7 So. 765
• Parties: RICE ET AL. v. TOBIAS.
• Court: Alabama Supreme Court

7 So. 765

89 Ala. 214

RICE ET AL. v. TOBIAS.

Supreme Court of Alabama

May 5, 1890

Appeal from city court of Montgomery; T. M. HARRINGTON, Judge.

The bill in this case was filed on the 14th of October, 1886, by W. W. Tobias, against Rice & Wilson, a partnership, and sought to perpetually enjoin a judgment at law which the defendants had obtained against him and S. B. Matthews as late copartners. The bill alleged that the complainant was not served with process in the suit, and had no notice of it and that he had a valid defense to the action, having been released from the debt by the plaintiffs therein. The judgment was rendered by default on the 13th day of June 1882, and the sheriff's return on the summons showed due service on each of the defendants. An answer was filed by Rice & Wilson, denying the alleged release on positive knowledge, and averring the due service of process on information and belief. On final hearing the court rendered a decree perpetually enjoining the judgment as prayed, from which respondent appealed.

E P. Morrissett, for appellants.

A. A. Wiley, for respondent.

MCCLELLAN J.

When this case was here on a former appeal, it was settled that the equity of the bill depended upon the establishment of two facts: (1) That the judgment sought to be enjoined was taken by default without the service of any process on the complainant, Tobias, who was a defendant in the judgment; (2) that the debt upon which the judgment was rendered had been discharged by release prior to the recovery. 83 Ala. 348, 3 South. Rep. 670. On a second hearing in the city court, the chancellor found the existence of both of these facts, and rendered a final decree perpetually enjoining the judgment at law. The present appeal brings under review the correctness of these conclusions on the facts.

From a very careful examination of the record, our opinion is that a clear preponderance of the testimony supports the finding as to each fact, and hence sustains the decree rendered. The complainant himself testifies, unequivocally, emphatically and consistently, that Rice & Wilson released him from all liability in respect to their claim against Matthews & Tobias, and agreed to look solely to Matthews, who continued in his own name the business in which the debt was incurred; and this he does with a degree of circumstantiality, so to speak, calculated to induce belief. He is directly supported by Matthews, whose interest lay in defeating the release, who also testifies that, in their efforts to collect from him by compromise or otherwise, Rice & Wilson, after the time of the alleged release, never mentioned Tobias as being also bound for the debt. He is also supported by the pregnant circumstance that the affidavit to the account on which judgment was had was first written so as to have reference alone to a liability of Matthews, and interlined so as to include complainant. He is also supported by the testimony of Sheriff Herbert to the effect that, when approached by him in regard to the execution on the judgment, the complainant at once said that...