De Soto Coal Mining & Development Co. v. Hill
Citation | 188 Ala. 667,65 So. 988 |
Decision Date | 21 May 1914 |
Docket Number | 767 |
Court | Alabama Supreme Court |
Parties | DE SOTO COAL MINING & DEVELOPMENT CO. v. HILL et al. |
Rehearing Denied July 2, 1914
Appeal from City Court of Birmingham; H.A. Sharpe, Judge.
Bill by the De Soto Coal Mining & Development Company against Jim Hill and another, to enjoin a judgment at law. From a decree sustaining demurrers to the bill, complainant appeals. Affirmed.
The bill alleges that:
It is then averred that the failure to produce said testimony on the trial was due to no fault, neglect, or lack of due diligence or care on its part in the preparation of said cause for the trial, and presenting its motion for a new trial; but on the other hand, it is averred that, immediately after the filing of the suit, it caused a full and complete investigation to be made of all the facts surrounding the accident to plaintiff, including the charges made in said complaint; that neither plaintiff's father nor mother was living at the time of the accident, although his father was living at the time of his employment a few months prior thereto, and it was on the written request of plaintiff's father, representing that plaintiff was more than 14 years of age, that such employment was given him. Plaintiff's stepmother was living, but did not know plaintiff's age of her own knowledge, nor could orator ascertain from any other person any independent knowledge, but in the course of the investigation and preparation for the trial plaintiff's family Bible, and that of his grandparents was exhibited containing entries showing that plaintiff was born on September 26, 1897, making plaintiff under 14 years of age at the time of the accident; that this Bible was exhibited by an uncle of plaintiff, a member of plaintiff's family, and that its superintendent was not an expert in handwriting, and had no reason to suspect and did not suspect, but assumed that said date was correct. It is then averred that at the time of the accident and casualty, orator had in the Maryland Casualty Company of Baltimore an employé's liability policy, protecting it against the payment of damages for injury to its employés that said policy contained a provision that it did not cover liability for an injury to any one employed by orator contrary to law. It is then averred that the evidence is not cumulative, and that it shows that the cause was without merit, and that plaintiff was in fact more than 14 years old, that the judgment is unjust and unconscionable, and that orator has exhausted every legal remedy open to it, and without the protection of this court, his property will be levied on and sold to satisfy the execution.
The demurrers raise the points discussed in the opinion.
J.T. Stokeley and R.H. Scrivner, of Birmingham, and John R. Tyson, of Montgomery, for appellant.
Vassar L. Allen and James M. Hanby, both of Birmingham, for appellees.
By this bill appellant (complainant in the court below) seeks to enjoin the enforcement of a judgment recovered against it by respondent in a suit at law in the city court of Birmingham, and affirmed by this court. De Soto Coal Mining & Development Co. v. Hill, 60 So. 583. The averments of the bill as amended and the demurrers interposed thereto will sufficiently appear in the report of the case. Demurrer to the bill as amended was sustained, hence this appeal.
As grounds for relief, and in support of the equity of the bill, complainant seems to rely upon the averments of newly discovered evidence, knowledge of which was not obtained until after a motion for a new trial had been heard and overruled. There is no fraud or misconduct charged on the part of the appellee, but the bill is, in effect, in short, what has been termed "an application in chancery in the nature of a new trial at law." In support of the equity of the bill, appellant cites three cases from this state as follows: Waters v. Creagh, Executors, 4 Stew. & P. 410; Cox v. Mobile & Girard R. Co., 44 Ala. 611, and Wilson v. Wilson, 21 So. 67. This latter case (reported as a memorandum decision in 113 Ala. 670) was a bill filed to review an equity decree. No demurrer was interposed, the opinion stating that:
"The sufficiency of the bill was not in any wise questioned, but it was treated by the defendant, by filing her answer to and taking issue on it, as altogether sufficient."
The other two cases cited sought the injunction of a judgment at law, and are more nearly in point.
While the exigencies of this case may not require it, as will hereinafter appear, yet due to the importance of the question presented by this record, we deem a brief review of the authorities both proper and timely.
Anciently courts of law did not grant new trials, and in those days courts of equity exercised that jurisdiction over trials at law, and compelled the successful party to submit to a new trial when justice required it. But even then the chancery court proceeded with great caution. The history of the exercise of this jurisdiction over proceedings of courts of law, by courts of equity, by way of injunction, may be found in the note to the case of Oliver v. Pray, 19 Am.Dec. 608, wherein it is shown to have created some unrest and much jealousy of the common-law judges. In the same note (page 609) we find the following quotation:
On the next page the author of the note cites instances in which the jurisdiction may still be exercised. He states, citing authorities, that in some particular cases a new trial has been decreed, because the evidence of the facts constituting the complete defense was not discovered until after judgment at law and the lapse of time in which he could then move for a new trial, making the following comment:
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